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BY: _ _ __
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G.R. No. - - - - - For: Certiorari and
i"'
Prohibition, with
Prayer for Temporary
Restraining Order
and/or Writ of
Preliminary Injunction
x---------------------------------------------x
PREFATORY
The Office of the Ombudsman was conceptualized during the
deliberations of the Constitutional Commission in 1986 "in 'answer to the
crying need of our people for an honest and responsive govemment." 1 To
become an effective "guardian of"the guardians" T a public office tasked to
investigate and prosecute public officials and empioyees - the Office of the
Ombudsman was given a wide array of powei:s, functions and duties, made
efficacious by its constitutionally-protected independence and autonomy,
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including the following:
(1)
inefficient.
1
Sponsorship Remarks of Commissioner Jose Nolledo, Record of the Deliberation of the l 986
Constitutional Commission (R.C.C.) No. 40, 26 July 1986, p. 267 .
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PETITION
Office of the Ombudsman vs. Court ofAppeals, et al.
Page 2of31
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(2)
(3)
(~)
(5)
1.
This is a Petition for certiorari3 and prohibitidn 4 filed under
Rule 65 of the Rules of Court, with urgent pr,ayer for the issuance of a
temporary restraining order (TRO) and/or writ df preliminary injunction. It
assails respondent Court of Appeals' grave abuse of discretion, amounting
to lack or excess of jurisdiction, in issuing the /;Resolution dated 16 March.
2015 (First Resolution) in CA-G.R. SP. No. 13:9453, and Resolution dated
20 March 2015 (Second Resolution) in CA-G.R.)SP. No. 139504.
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PETITION
Office ofthe Ombudsman vs. Court ofAppeals, et al.
Page 3of31
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PETITION
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3.
The First Resolution and Second Resolution being assailed
(collectively referred to as the '~Questioned Resolutions") of respondent
Court of Appeals are tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction because they were issued in violation of the
constitutionally-guaranteed independence of the Office of the Ombudsman, 7
the nature of the position of the Ombudsman, and the express provision of
Section 14 of Republic Act (R.A.) No. 6770 or the Ombudsman Act of 1989,
reading:
Section 14. Restrictions. - No writ of injunction shall be issued
by any court to delay an investigation being conducted by the
Ombudsman under this Act, unless there is a prima facie evidence that
the subject matter of the investigation is outside the jurisdiction of the
Office of the Ombudsman.
No court shall hear any appeal o; application for remedy
against the decision or findings of the .Ombudsman, except the
Supreme Court, on pure question of law. [emphasis and underscoring
supplied]
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4.
Respondent Court of Appeals having: committed grave abuse of
discretion, defined as "the arbitrary or despotic'/ exercise of power due to
passion, prejudice or personal hostility; or the ;:whimsical, arbitrary, or a
capricious exercise of power that amounts to ~n evasion or a refusal to
perform a positive duty enjoined by law or to acj at all in contemplation of
law," 8 petitioner submits that certiorari lies.
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PETITION
Office of the Ombudsman vs. Court ofAppeals. et al.
Page5of31
5.
On the other hand, there being a need to prevent the unlawful
and oppressive exercise of authority and to provide for a fair and orderly
administration of justice, " 9 petitioner submits that prohibition lies.
6.
Petitioner has no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law except via this Petition.
7.
While as a rule, certiorari will not lie unless the lower court
has, through a motion for reconsideration, been given a cha~ce to correct its
errors, this rule admits of certain exceptions, such as in this case where (a)
10
the Questioned Resolutions are contrary to the Constitution, and the law,
(b) there is extreme urgency for relief and any further delay would
irreparably prejudice. petitioner and the public as well, 11 ( c) the issues
involved are, as in this case, pure questions of law, 12 (d) the error is patent
or the disputed order is void, 1 or (e) where public interest is involved. 14 All
these exceptions are present in this case.
THE PARTIES
10. Petitioner CONCHITA CARPIO MORALES is .the
incumbent Ombudsman. The Office of the Ombudsman is an independent
constitutional body created under Article XI, '.Section 5 of the 1987
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PETITION
Office of the Ombudsman vs. Court ofAppeals, et al.
Page 6of31
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PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
Page 7 o/31
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Special Panel of Investigators vs. Jejomar Erwin S. Binay Jr. (OMB-C-A-15-0058), Special Panel of
Investigators vs. Jejomar Erwin S. Binay Jr. (OMB-C-A-15-0061 )i Special Panel of Investigators vs.
Jejomar Erwin S. Binay Jr. (OMB-C-A-15-0062), and Special Panel bf Investigators vs. Jejomar Erwin S.
Binay Jr. (OMB-C-A-15-0063).
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Special Panel of lnvf!;stigators v. Jejomar Erwin S. Binay Jr. (OMB~i:-C-15-0059).
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Special Panel of Investigators v. Jejomar Erwin S. Binay Jr. (OMB-C-C-15-0062).
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Special Panel ofInvestigators v. Jejomar Erwin S. Binay Jr. (QMB~C-C-15-0063).
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Special Panel of Investigators v. Jejomar Erwin S. Binay Jr. (OMB-~-C-15-0064).
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PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
PageBo/31
Order within five (5) days from receipt (a copy of the Ombudsman's
Indorsement to the DILG is attached hereto as Annex "F"), the DILG,
though NCR Regional Director Renato L. Brion, caused the implementation
of the Suspension Order. A copy of the Suspension Order was posted on the
wall of the Makati City Hall, after diligent efforts to have it personally
received by respondent Binay failed, given that all the gates of the Makati
City Hall were closed and sealed that even some City emp'loyees could not
enter the building.
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PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
Page 9 o/31
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A copy of the Amended and Supplemental Petition for Contempt isattached hereto as Annex "I."
PETITION
Office ofthe Ombudsman vs. Court of Appeals, et al.
Page!Oo/31
I.
II.
I.
...
!If
THE
OFFICE
OF
THE ;\OMBUDSMAN'S
INDEPENDENCE WAS GRAVEL't UNDERMINED
BY RESPONDENT COURT OF APPEALS WHEN IT
ISSUED THE FIRST RESOLUTION AGAINST THE
PREVENTIVE SUSPENSION OF RESPONDENT
BINAY .
PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
Page
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PETITION
Office of the Ombudsman vs. Court qfAppeals, et al.
Page 12of31
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II.
THE
OFFICE
OF
THE
OMBUDSMAN'S INDEPENDENCE
WAS GRAVELY UNDERMINED BY
RESPONDENT
COURT
OF
APPEALS WHEN IT ISSUED THE
FIRST RESOLUTION AGAINST
THE PREVENTIVE SUSPENSION
OF RESPONDENT BINAY.
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PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
Page 13of31
31. Verily, therefore, the texts of the 1987 Constitution and of R.A.
No. 6770 leave no room to doubt the spirit that animates them. The need to
make the Office of the Ombudsman practically supreme in its own sphere the fight against graft and corruption - is so paramount that even apolitical
bodies like courts of law are prohibited from interfering with the exercise of
its investigative functions.
3 2. Without doubt, the broad investigatory powers of the Office. of
the Ombudsman, exercised pursl!ant to "its constitutional mandate a:;;
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protector of the people," will be rendered .illusory once unscrupulous
public officials and employees are able breach its mantle of ,protection.
33. Wisely, the Framers and the legislators were able to recognize,
undoubtedly with the benefit of past experience, that an injunctive writ from
a court, obtained through fair means or foul, can undermine the
independence of the Office of the Ombudsman just as effectively as direct
harassment or political pressure would; and so, erring on the side of caution,
it had been decided that the protection to be accorded to the Office of the
Ombudsman in the performance of its constitutiortal duty should be broad
enough to cover even the injunctive reliefs traditionally obtainable from the
courts.
34. The foregoing only serve to highlight the patent and grave error
of respondent Court of Appeals when it issued the!,. Questioned Resolutions.
Even as the 1987 Constitution and R.A. No. 6770,: as well as a long line of
jurisprudence acknowledge the independence 'bf the Office of the
Ombudsman, respondent Court of Appeals ignored the sam~. recklessly
interfering with an ongoing investigation against respondent Binay.
Respondent Court of Appeals' actions, directed as they were at an
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PETITION
Office of the Ombudsman vs. Court qf Appeals, et al.
Page 14of31
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PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
Page 15of31
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PETITION
Office of the Ombudsman vs. Court qfAppeals, et al.
Page 16of31
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Appeals' First Resolution should be regarded for what it is: an act tainted by
grave abuse of discretion. Indeed, if the Office of the Ombudsman's
constitutionally-guaranteed independence were to mean anything, it would
have to include the freedom to conduct administrative proceedings openly,
decisively and without undue interference. If the directive in Section 14 of
R.A. No. 6770 is to be respected, respondent Court of Appeals should be
prevented from further delaying, compromising and interfering with the
ongoing resolution of the cases against respondent Binay. '
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Office of the Ombudsman vs. Evangelista, G.R. No. 177211. 13 March 2009.
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PETITION
Office of the Ombud~man vs. Court of Appeals, et al.
Page 17of31
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PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
Page 18of31
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50. It is clear from the foregoing that petitioner runs the risk of
being imprisoned, possibly for an indefinite period, if she is cited for
contempt. In that case, she will be., for all intents and purposes, removed
from office and prevented from discharging her mandate. This is precisely
the evil sought to be prevented by the 1987 Constitution when it designated
a very limited class of public officials as removable only by impeachment.
Needless to state, there is a paramount need to shield these public officials,
including petitioner, from the threat of removal froin office by means other
than impeachment, because of the significance of the public functions they
exercise.
51. Respondent Court of Appeals' Second Resolution was,
therefore, issued with grave abuse of discretion. Qiven the immunity from
criminal proceedings that impeachable officers like!petitioner enjoys (and it
has been established supra that a contempt . proceedings is criminal in
nature), respondent Court of Appeals should riot eve have directed
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PETITION
Office of the Ombudsman vs. Court ofAppeals. et al.
Page 19of31
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PETITION
Office of the Ombudsman vs. Court ofAppeals, et al.
Page 20of31
adverse parties can simply follow respondent Binaf s tack and charge her
for contempt.
55. Petitioner seeks to tak~ this opportunity to obtain a ruling, on
behalf of the institution she represents, that will clarify once and for all the
extent to which respondent Court of Appeals and lower courts may interfere
with the Ombudsman's investigations. Index animi sermo est- speech is the
index of intention. 33 The language of the law, when clear and unambiguous,
should be given effect. Indeed, the principle verba legis non est recedendum
- from the words of the statute there should be no departure - is "wellentrenched in this jurisdiction."34 Given these universally accepted rules of
statutory construction, it is high time that this Honorable Court decide, once
and for all, exactly what the law means when it categorically states that No writ of injunction shall be issued by any court to delay an
investigation being conducted by the Ombudsman under this Act,
unless there is a prima facie evidence that the subject matter of the
investigation is outside the jurisdiction of the Office of the Ombudsman. 35
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PETITION
Office of the Ombudsman vs. Court ofAppeals, et al.
Page 21of31
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PETITION
Office ofthe Ombudsman vs. Court of Appeals, et al.
Page 22of31
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PETITION
Office of the Ombudsman vs. Court qfAppeals, et al.
Page 23of31
Office of the Ombudsman vs. Evangelista, G.R. No. 177211, 13 March 2009.
Office of the Ombudsman vs. Capulong, G.R~No. 201643, 12 March 2014.
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Office of the Ombudsman vs. Evangelista, G.R. No. 177211, 13 March 2009; Casing vs. Ombudsman,
G.R. No. 192334, 13 June 2012; Araullo vs. Office of the Ombudsman, G.R. No. 194157, 30 July 2014
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PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
Page 24of31
R.A. No. 6770, is given the power to suspend a public official pending
investigation if "in his judgment" the evidence presented before him tends
to show that the official's guilt h5 strong and if the further requisites
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enumerated in Section 24 are present.
69. It bears to note that in the cases filed against respondent Binay,
petitioner exercised her judgment and found the evidence of guilt to be
strong on the basis of the evidence presented in the complaint, which
included sworn statements of alleged losing bidders and members of the
Makati Bids and Awards Committee (attesting to irregularities in the
procurement subject of the complaint), documents negating the purported
publication of bids, disbursement vouchers, checks and official receipts.
Consideration of the foregoing pieces of evidence suffices to justify the
issuance of the Suspension Order, since the said remedy is merely a
preliminary step in an administrative investigation. 52 It does not even require
prior notice nor hearing. 53 At such initial stage, there is no requirement that
there be a finding of substantial evidence of guilt to warrant the issuance of
an order for preventive suspension. All that is needed is that the requisites
under Section 24 be complied with.
70. As far as the first requirement - "evidence of guilt ,is strong" is concerned, petitioner was able to establish the same in the Suspension
Order. As to the second requisite, 54 there is likewise no dispute that .all the
enumerated circumstances are present, as clearly ~xplained in the
Suspension Order:
As regards the second requisite, all the circumstances enumerated
therein are likewise present. The Complaint charges respondents
[including respondent Binay] with Grave Misconduct, Serious Dishonesty
and Conduct Prejudicial to the Best Interest of the Service. If proven true,
they constitute grounds for removal from public service under the Revised
Rules on Administrative Cases in the Civil Service. Moreover, since the
respondents' respective positions give them access to public records and
influence on possible witnesses, respondents' continued stay in officer
may prejudice the cases filed against them. 55
52
53
54
Ombudsman vs. Va/eroso, G.R. No. 167828, 02 April 2, 2007; emphasis supplied.
Quimbo vs. Gervacio, G.R. No. 155620, 09 August 2005
Hagadvs. Gozo-Dadole, G.R. No. 108072, 12 December 1995
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Either: (a) that the offense charged involves dishonesty, oppression or'grave misconduct or neglect in the
performance of duty; (b) the charge would warrant removal from the service; or (c) the respondent's
continued stay in office may prejudice the case filed against him
Suspension Order, p. 9.
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PETITION
Office ofthe Ombudsman vs. Court of Appeals, et al.
Page25 o/31
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74.
Subject matter jurisdiction is conferred by law, not by the
consent or acquiescence of any or all of the parties. 56 In this case, the subject
matter of the complaints against respondent Bin;ay was well within the
Ombudsman's jurisdiction. Under Section 13 of R.A. No. 6770, the
Ombudsman has the authority to act on complaints filed in any form or
manner against officers or employees of the Government, or of any
subdivision, agency or instrumentality thereof, inclUding government-owned
or controlled corporations, and enforce their ~dministrative, civil and
criminal liability in every case where the evidence warrants in order to
promote efficient service by the Government to the ;people.
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PETITION
Office ofthe Ombudsman vs. Court of Appeals, et al.
Page 26 o/31
I.
77. Petitioner has a clear legal right that she has an interest in
protecting, and which can only be preserved during the pendency of the
Petition if an injunctive writ is issued by this Honorable Court. A "clear
legal right" means one clearly founded on or ; granted by law or is
enforceable as a matter of law. 57
(2006) .
Boncodin vs. National Power Corporation Employees Consolidated U~ion (NECU), 503 SCRA 611, 623
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PETITION
Office of the Ombudsman vs. Court of Appeals, et al.
Page 27of31
PETITION
Office of the Ombudsman vs. Court ofAppeals, et al.
Page 28of31
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PETITION
Office of the Ombudsman vs. Court qf Appeals, et al.
Page 29 of3/
PRAYER
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Court:
1. Immediately ISSUE a Temporary Restraining Order and/or Writ of
Preliminary Injunction (1) enjoining respondent Court of Appeals
from conducting further proceedings in CA-G.R. No. 139453 arid
CA-G.R. No. 139504, further enjoining the said court from
implementing the Resolutions dated March 16, 2015 and March
20, 2015, until further notice or orders from this Honorable Court;
and (2) enjoining respondent Binay from continuing to
misrepresent himself as the City Mayor of Makati City and
discharging functions as such;
2. After due notice and hearing, render judgment and issue a: (a) writ
of certiorari ANNULLING the questioned Resolution dated 16
March 2015, and (b) writ of prohibition COMMANDING
respondent Court of Appeals (Sixth Division) to desist from further
proceeding with the Amended and Supplemental Petition for
Contempt as against Ombudsman Conchita Carpio Morales.
Other reliefs just and equitable under the premises are likewise prayed
for.
Makati City for the City of Manila, Metro Manila, Philippines, 25
March 2015.
II Signatories to follow//
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:--t+-8!Y7ll
\:l.~J*T-
'tIE,RMES L. OCAMPO
Assistant Solicitor General
Roll No. 40169
IBP Lifetime Roll No. 09135
MCLE Compliance No. IV-0016556
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Copy furnished:
ATTY. CLARO F. CERTEZA
ATTY. MARIA PATRICIA L. ALVAREZ
SUBIDO PAGENTE CERTEZA MENDOZA & BINA Y,
Counsel for Respondent
5th Floor, Prince Building, 117 Rada St.
Legaspi Village, 1129 Makati City
COURT OF APPEALS
Ma. Orosa Street,
Ermita Manila
(CA-G.R. SP No. 139453 &
CA-G.R. SP No. 139504)
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EXPLANATION
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RAYMUND I. RIGODON
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Ombudsman
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CERTIFIED
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AFFIDAVIT OF SERVICE
I, JbSELITO B. BELLEZA, as Administrative Aide II of the Office of Legal
Affiars, Office of the Ombudsman, with postal address at Office of the Ombudsman,
Ombudsman Bldg., Agham Road, Government Center, North Triangle, Quezon City,
under oath, hereby depose and say:
That on 25 March 2015, I served copies of the Petition for Certiorari and
entitled "Conchita Carpio Morales vs
Prohibition dated 25 March 2015 in G.R.
Court of Appeals (Sixth Division) and Jejomar Erwin S. Binay, Jr. " pursuant to Section
13, Rule 13 of the 1997 Rules of Civil Procedure, in the following manner, to wit:
ADDRESSEES
COURT OF APPEALS
Padre Faura, Manila
JEJOMAR ERWIN S. BIN{\Y, JR.
8514 Caong St., Brgy. San Antonio
Makati City
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By Registered Mail
Registry Receipt No. \\ ";'.'/ o
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By Registered Mail
Registry Receipt No.
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by depositing copies of the pleading on 25 March 2015 with the Central Post Office,
Quezon City, as evidenced by the registry receipt numbers indicated above, after the
names of the party-addressees, which original receipts are attached to the original of the
aforesaid Petition for Certiorari and Prohibition, and with instructions to the postmaster
to return the mail to the sender after ten(lO) days, if undelivered to the party-addressee
concerned.
:
25 March 2015, Quezon City, Philippines.
JOS~L~LLEZA
' Affiant
,;
SUBSCRIBED AND SWORN to before me this 25th day of March 2015, affiant
exhibiting to me his Office of the Ombudsman I.D. No. 940123, bearing his photograph
and signature.
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Administering Aide II
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