The Fifth Amendment Case its Consequences

The Fifth Amendment Case its Consequences

1. Introduction:

The establishment of the People’s Republic of Bangladesh has been amended number of times. The following is a brief explanation of those amendments. First Amendment was written in 1973, the Constitution Act 1973 was approved inserting sub-art (3) in Article 47 whereby any law providing for the custody and trial of war criminals was kept out of the purview of the terms of Part III relating to basic rights.[1] Second Amendment is the unique Constitution did not have provision for proclamation of state of emergency and preventive detention. By the Constitution of Second Amendment Act 1973, Article 33 was amended given that defensive detention and Part IXA was inserted conferring control on Parliament and the supervisory to deal with emergency situations and provided that for suspension of enforcement of the original rights during the time of emergency. Third Amendment act was written in 1974, the Constitution (Third Amendment) Act 1974 was approved to give effect to the agreement with India giving up the claim in respect of Berubari and retaining Dahagram and Angorpota. Fourth Amendment of The Constitution Act 1975 was passed on 25 January 1975. key changes were brought into the Constitution by this adjustment.[2] The presidential form of government was introduced in point of the parliamentary method a one-party method in place of a multi-party system was introduced; the powers of the Parliament were reduced; the Judiciary lost much of its freedom; the Supreme Court was rundown of its jurisdiction over the defense and enforcement of basic rights. Last but not the list Fifth Amendment of the Constitution Act was passed by the Jatiya Sangsad on 6 April 1979. This Act amended the Fourth agenda to the establishment by adding a new section 18 there to, which provided that all amendments, trappings, modification, substitution and omission made in the establishment during the period between 15 August 1975 and 9 April 1979 by any Proclamation or Proclamation Order of the Martial Law establishment had been genuinely made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever. The expression ‘BISMILLAH-AR RAHMAN-AR-RAHIM’ was added before the preface of the Constitution. The expression ‘historic fight back for national liberation’ in the introduction was replaced by the expression ‘a historic war for national independence.’ One party system was replaced by combined system. Basic morality of state policy was made as ‘complete trust and faith in the Almighty Allah, independence, equality and socialism meaning financial and societal justice. In April 1979, the Parliament, by two-thirds majority passed the Fifth Amendment Act to the Constitution.[3] It brought many changes: restored fundamental rights, multiparty democracy and among others, gave Bangladesh Constitution an Islamic character by deleting secularism and socialism from the Constitution. To give the Constitution an Islamic character, the Preamble of the Constitution was changed in the following manner. Pledging that the high ideals of absolute trust and faith in the Almighty Allah shall be the fundamental principle of the Constitution. By operation of the original Article 38, no citizen had the right to form or take part in the activities of any union which has been formed on the basis of religion with a view to pursuing a political purpose. The High Court, by declaring the Fifth Amendment unlawful, has revived the old Article 38. For clear and better considerate, we are quoting below the unique Article 38 and the amend one.

2. Part A: The Judgment of 5th Amendment:

The judgment in 5th Amendment case declaring the 5th Amendment to the Constitution illegal delivered in 2005 by a Division Bench of the High Court Division has so far raise small hue and cry until May 4th 2009 when the Attorney General surprisingly moved a petition for withdrawing the leave-to-appeal petition in such a case having grave lawful implications and interpretation. As the present government has decided not to continue the appeal any more, the Appellate Division has allowed filing of petition for leave to petition by Khandker Delwar Hossain and other two interveners.[4] This write-up is intended to explore some constitutional issues involved in the decision of 5th Amendment case and the pitfalls in withdrawal of the appeal. Apart from declaring the 5th Amendment illegal and unproductive, the judgment has also declared illegal and void the martial law proclamations, including the Martial Law Regulation 7 of 1977 that deals with deserted property, and all actions done under the martial law between 15th August, 1975 and April 1979. The court held that usurpation of the state power through martial law public statement, particularly by Khondoker Mostaque Ahmed, Justice Abu Sadat Mohammad Sayem and Major General Ziaur Rahman was unconstitutional. The judgment as it is reported in BLT Special Issue 2006 contains 242 pages with 22 points in its functioning part. The judgment is mainly based on a few doctrines under lawful jurisprudence policy of blunder or unconstitutionality, principle of vital structure, the power of judicial assess under a written constitution and belief of oath of office under the establishment. [5]Separately from the scrutiny of limits of some these doctrines; there are some jurisdictional and lawful continuation issues which the Appellate part should examine in quality. Proclaiming the Fifth Amendment constitutional on the foundation of the raised concerns and penalty would equal to making a legal decision based on extra-legal kindness and the necessary finish turning the banned means into a permissible one a outstanding challenge in any justice method. Its effect would be to condone many unacceptable elements of the Fifth Amendment. [6]It would validate all acts of the martial law regimes, as well as those that vandalized and customized the constitution to supply for their political ambition, distant the constitutionally fixed ideals of the liberation war, recommend politics, stultified the development of supporting foundation, made policy difficult for politicians by creating political turncoat, installed pliable parliament through rigged election, introduced military oligarchy with democratic outfits, confined the rule of law for the rule of the jungle to prevail, and pursued sectarian interests.

a) Constitutional Issues for Fifth Amendment:

By declaring the Fifth Amendment illegal, the High Court has also interfered with the connection of Bangladesh with other Muslim countries based on Islamic solidarity. Article 25(2) of the creation provided as follows. For the last 33 years, this was the Constitutional basis for the Government of Bangladesh upon which its relations with the Muslim countries were established. The Fifth Amendment Case has deleted this provision. This may indirectly affect the relationship of Bangladesh (which is the home of almost 10% of the entire Muslim population of the world, with the rest of the Islamic world. Finally,[7] an anomaly which was present in the original Constitution of 1972 has been re-introduced. Under Article 6 of the unamended Constitution, the citizens of the Bangladesh were known as Bangalees. Now, the territory of Bangladesh comprises of many ethnic groups. The Bangalees are one such ethnic group. As such the term Bangalee as used in the Constitution had the undesired effect of prima facie excluding other ethnic groups from Bangladeshi citizenship. The Constitution Fifth Amendment Act, 1979 having defined citizens of Bangladesh as Bangladeshi and not as Bangalees does not exclude other national groups from the citizenship of Bangladesh. However, this beneficial amendment was deleted by the High Court Division. The notion of secularism, being opposing to the history of the region and its nation, reference to secularism in the bill were removed and in its place, unlimited trust and faith in Almighty Allah were inserted. As such, in the 38 years since the framing of the Constitution, the citizens of the country have spoken their complete trust and faith in Almighty Allah for over 34 years. [8]This place was changed by the High Court judgment. Every national shall have the right to form links or union, subject to any sensible limits imposed by law in the benefit of ethics or public order provide that no being shall have the right to form, or be a element or if not take part in the actions of, any common or other involvement or union which in the name or on the base of any religion has for its entity, or pursues, a political reason.[9]

b) The Constitutional Status of Fifth Amendment:

The constitutional status of the martial law regime in the Fifth Amendment is identical with that of the Yahya regime. In a offer to prevent the Asma Jilani penalty, these regimes overly sought impunity under the same constitution that they proudly defied by force. It is a legal narrative to say that they consequent their power from martial law and to justify that authority under the constitution, which outlaw the past. The Supreme Court of Bangladesh, being the custodian and guardian of the constitution, and its judges being bound by their promise, are compelled to defend the constitution. The concerns and penalty raised are extra-legal matters for the AD in deciding the constitutionality of the Fifth Amendment. However, there are palatable legal and managerial options available to address those concerns and consequences, particularly when an elected parliament is functional in Bangladesh.[10] The changes brought about by the Fourth Amendment have almost dissipated. Nonetheless, any unwanted aspects of the 15 August 1975 condition, say the form of government, may be invalidate and desirable aspects of governance between 15 August 1975 and 9 April 1979 may be given validity by current parliament. This precisely happened to the protection regulation 1975, an element of the Fifth Amendment, which was invalidate by parliament to commence the Bangabandhu murder trialConstitutionalism in Bangladesh has been on a roller-coaster ride. Mischievous interference by the Fifth Amendment stripped the constitution of its basic structural essence and coherence. The judicial scrutiny of its retrospective unconstitutionality is in order and indeed imperative to generate a deterrent effect prospectively on those anxious of exploiting the constitution as a political ploy to conceal their self-serving false agendas. It is the assigned and assumed responsibility of the Supreme Court to preserve the constitutional value and self-respect as the supreme law of the Republic. There are credible avenues for adjustments to avoid any legal vacuum, and ensure governing continuity and stability without abrupt interruptions from the past. For citizens, it is a matter of stark and reasoned choice between support and sympathy for lawful, and opposition and antipathy for illegal, behaviors.[11]We should not exaggerate our concerns and consequences to serve vested interests and to frustrate our ongoing quest for a law-abiding culture so fundamental to our dignified existence.

3. Part B: Amend the current Constitution:

Fundamental principles of state policy after the Fifth Amendment the above four principles were replaced in the Preamble and Art.[12] 8 of the Constitution by ‘absolute trust and faith in the Almighty Allah,’ ‘nationalism’ Bangladeshi nationalism, ‘democracy’ and ‘socialism meaning economic and social justice.’ ,Absolute trust and faith in the Almighty Allah’ was made to be the basis of all actions in Art 8(1A) of the Constitution. Upon autonomy, Bangladesh issued the Adaptation of Existing Laws Order No. 48 of 1972, adopt certain laws and acts (of Pakistan) that were in existence and applicable in the East Pakistan prior to independence (such as the 1951 Citizenship Act) in order to fill up the gap created by the secession of Bangladesh from Pakistan. senate can choose and pick all acceptable elements of the Fifth Amendment and put a stamp of validity, even retrospectively if necessary.[13] Parliament can also justify its action under the principle of necessity in the same way it endorsed overstay of the immediately past caretaker government and the Law Minister justified it as a matter of necessity. There are legal ways to overcome any potential vacuum in continuity.[14] There is nothing in law or the constitution that prevents parliament from resorting to adaptation if the AD rejects the leave-to-appeal petition.

a) What would happen to all the amendments:

The Constitution confers power on Parliament to amend the Constitution. For such amendment there are some procedural requirements. For the amendment of Constitution the Bill must be passed by the votes of no less than two–third of the total number of members of Parliament. The President shall within seven days of the presentation of the Bill after being passed in Parliament with the requisite majority assent to the Bill and if he fails to asset within that time he shall be deemed to have assented the Bill. However, if the Bill seeks to amend the Preamble or any of the provisions of Article 8 (provision relating to fundamental principles), 48 (provision relating to the President), 56 (provision relating to Ministers) or 142 (provision relating to ‘power to amend any provision of the Constitution’) the President shall refer it to a referendum  and if the majority votes in the referendum are in favor of the amendment the President shall be deemed to have assented to the Bill, otherwise the President shall be deemed to have withheld his assent from the Bill The procedural requirements are mandatory and non-compliance of the requirement will render the amendment void. . Proclaiming the Fifth Amendment constitutional on the basis of the raised concerns and consequences would tantamount to making a legal decision based on extra-legal considerations and the justified end turning the prohibited means into a permissible one a striking contradiction in any justice system. Its effect would be to condone many unacceptable elements of the Fifth Amendment. It would validate all acts of the martial law regimes, including those that vandalised and tailored the constitution to cater for their political ambitions, removed the constitutionally entrenched ideals of the liberation war,[15] recommunalised politics, stultified the development of political institutions, made politics difficult for politicians by creating political turncoats, installed pliable parliament through rigged elections, introduced military oligarchy with democratic outfits, hamstrung the rule of law for the rule of the jungle to prevail, and pursued sectarian interests.Parliament may enact an adaptation legislation to validate any laws and acts of those martial law regimes currently in force with a view to avoid any legal vacuum and non-continuity in governmental authorities. Precedents of such adoption exist in the law-making history of Bangladesh. [16]

4. Conclusion:

If the judgment in the 5th amendment case is upheld, some important decisions by the Appellate Division in Halima Khatun V. Bangladesh, Sultan Ahmed V. Chief Election Commissioner, Haji Jaynal Abedin V. State, Jamil Haque V. Bangladesh, Nasiruddin V. Bangladesh, Khandakar Mostaque Ahmed V. Bangladesh, Khandker Ehtesamuddin Ahmed V. Bangladesh, Bangladesh V. Mahbubur Rashid, Presidents Secretariat V. K. Mahtabuddin Ahmed, Nasir Kader Siddiqui V. Bangladesh will be affected as these judgment accepted that martial law proclamation, regulation etc, were supreme law and the Constitution lost its character as supreme law.[17] Constitution is the supreme law. It is the reflection of peoples’ wishes and desires. The government should think very carefully before making any fundamental changes in it. It should refrain from making major changes unless a national consensus is reached. History tells us fundamental changes of the Constitution by the unilateral action of the government have not brought fruitful result.[18] Rather, it created bitter hostility and division within the country when stability and unity were immensely needed for national prosperity. In any event, if any fundamental changes are to be made in the current Constitution, the prescribed procedure outlined in the very Constitution must be followed.

Reference:

1.       “The Avalon Project: Notes on the Debates in the Federal Convention”. The Avalon Project at Yale Law School. Retrieved 2008-01-20.

2.       Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part One: September 1787 to February 1788 (The Library of America, 1993) ISBN 0-940450-42-9

3.       Bailyn, Bernard, ed. The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle for Ratification. Part Two: January to August 1788 (The Library of America, 1993) ISBN 0-940450-64-X

4.       Elliot, Jonathan, The Debates in the Several State Conventions of the Adoption of the Federal Constitution 5 vols Vol. 1, Constitution, Declaration of Independence, Articles of Confederation, Journal of Federal Convention, Vol. 2, State Conventions Massachusetts, Connecticut., New Hampshire, New York, Pennsylvania, Maryland, Vol. 3, Virginia, Vol. 4, North. and South. Carolina, Resolutions, Tariffs, Banks, Debt, Vol. 5 Debates in Congress, Madison’s Notes, Misc. Letters

5.       Ford, Paul Leicester, ed. Pamphlets on the Constitution of the United States, published during its Discussion by the People, 1787-1788, edited with notes and a bibliography by Paul Leicester Ford (Brooklyn, N.Y., 1888). Pamphlets written between 1787-88 by Elbridge Gerry, Noah Webster, John Jay, Melancthon Smith, Pelatiah Werster, Tench Coxe, James Wilson, John Dickinson, Alexander Contee Hanson, Edmund Randolph, Richard Henry Lee, George Mason, and David Ramsay. The essay attributed to Gerry was in fact written by Mercy Otis Warren.

6.       Garvey, John H. ed. Modern Constitutional Theory: A Reader 5th ed 2004; 820pp.

7.       Kaminski, John P. ed Documentary History of the Ratification of the Constitution, 1976- (Published volumes 1-10, 13-23, forthcoming volumes 11-12, 24-29. Most recent volume: The Documentary History of the Ratification of the Constitution, Vol. 23, Ratification by the States: New York, No. 5 ISBN 978-0-87020-439-5), Madison, The State Historical Society of Wisconsin, (http://www.wisconsinhistory.org/ratification) Edited by John P. Kaminski, Gaspare J. Saladino,Richard Leffler, Charles H. Schoenleber and Margaret A. Hogan.

8.       Kurland, Philip B. and Lerner, Ralph, eds. The Founders’ Constitution. The work consists of “extracts from the leading works of political theory, history, law, and constitutional argument on which the Framers and their contemporaries drew and which they themselves produced.” (Liberty Fund ISBN 0-86597-279-6) The Online Edition is a joint venture of the University of Chicago Press and the Liberty Fund.

9.       Mason, Alpheus Thomas and Donald Grier Stephenson, ed. American Constitutional Law: Introductory Essays and Selected Cases (14th Edition) (2004)

10.   Tribe, Laurence H. American Constitutional Law (1999)

1. Amar, Akhil Reed (2005). “In the Beginning”. America’s Constitution: A Biography. New York: Random House. ISBN 1-4000-6262-4.
2. Anastaplo, George, “Reflections on Constitutional Law” 2006 ISBN 0-8131-9156-4
3. Beard, Charles. An Economic Interpretation of the Constitution of the United States, 1913.
4. Richard R. Beeman, Stephen Botein, and Edward C., Carter, II, eds., Beyond Confederation: Origins of the Constitution and American National Identity (University of North Carolina Press, 1987);
5. Bernstein, Richard B. Are We to Be a Nation? The Making of the Constitution (Harvard University Press, 1987);
6. Bernstein, Richard B. Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? (New York: Times Books/Random House, 1993; Lawrence: University Press of Kansas, 1995);
7. Gregory Casey. “The Supreme Court and Myth: An Empirical Investigation,” Law & Society Review, Vol. 8, No. 3 (Spring, 1974), pp. 385–420
8. Cooley, Thomas, The General Principles of Constitutional Law in the United States of America, Third Edition, revised by Andrew Cunningham McLaughlin, Boston, Little, Brown, and Company, 1898.
9. Cooley, Thomas, A Treatise on the Constitutional Limitations, Boston. Little, Brown and Company, 1878.
10. Countryman, Edward, ed. What Did the Constitution Mean to Early Americans.Bedford/St. Martin’s, 1999. xii + 169 pp. online review ISBN 0-312-18262-7.
11. Edling, Max M. (2003). A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State. Oxford University Press. ISBN 0-19-514870-3.
12. Ely, James W., Jr. The Guardian of Every Other Right: A Constitutional History of Property Rights. Oxford U. Press, 1992. 193 pp.
13. Fallon, Richard H. (2004). The Dynamic Constitution: An Introduction to American Constitutional Law. Cambridge University Press. ISBN 0-521-84094-5.
14. Finkelman, Paul. Slavery and the Founders: Race and Slavery in the Age of Jefferson (M.E. Sharpe, 1996);
15. Fritz, Christian G. American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) [ISBN 978-0-521-88188-3
16. Hoffer, Peter Charles. The Law’s Conscience: Equitable Constitutionalism in America. U. of North Carolina Press, 1990. 301 pp.
17. Irons, Peter. A People’s History of the Supreme Court. 2000. 542 pp.
18. Kammen, Michael (1986). A Machine that Would Go of Itself: The Constitution in American Culture. New York: Alfred A. Knopf. ISBN 0-394-52905-7.
19. Kelly, Alfred Hinsey; Harbison, Winfred Audif; Belz, Herman (1991). The American Constitution: its origins and development (7^th ed.). New York: Norton & Co. ISBN 0-393-96119-2.
20. Kersch, Ken I. Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law. Cambridge University Press, 2004. 392 pp.
21. Kyvig, David E. Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (Lawrence: University Press of Kansas, 1996);
22. Levin, Daniel Lessard. Representing Popular Sovereignty: The Constitution in American Political Culture. State U. of New York Press., 1999. 283 pp.
23. Licht, Robert A., ed. The Framers and Fundamental Rights. American Enterprise Inst. Press, 1991. 194 pp.
24. Manley, John F. and Dolbeare, Kenneth M., ed (1987). The Case Against the Constitution: From the Anti-Federalists to the Present. M.E. Sharpe. ISBN 0-87332-432-3.
25. Marshall, Thurgood, “The Constitution: A Living Document,” Howard Law Journal 1987: 623-28.
26. Paschal, George Washington, The Constitution of the United States Defined and Carefully Annotated Washington DC, 1868
27. Powell, H. Jefferson. A Community Built on Words: The Constitution in History and Politics. University of Chicago Press, 2002. 251 pp.
28. Rakove, Jack N. Original Meanings: Politics and Ideas in the Making of the Constitution. Knopf, 1996. 455 pp.
29. Sandoz, Ellis. A Government of Laws: Political Theory, Religion, and the American Founding. Louisiana State U. Press, 1990. 259 pp.
30. Sheldon, Charles H. Essentials of Constitutional Law: The Supreme Court and the Fundamental Law (2001) 208 pp
31. Spalding, Matthew, & Forte, David F., eds. The Heritage Guide to the Constitution, Regnery Publishing, Washington, D.C., 2005. (A limited preview is available at Google Books.)

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[1] The Constitution of the People’s Republic of Bangladesh has been amended several times. The following is a brief account of those amendments.

[2] All the findings and observations in respect of Article 150 and the Fourth Schedule in the judgment of the High Court Division are hereby expunged, and the validation of Article 95 is notapproved

[3] See, Richard R. Beeman, Stephen Botein, and Edward C., Carter, II, eds., Beyond Confederation: Origins of the Constitution and American National Identity (University of North Carolina Press, 1987);

[4] See, Gregory Casey. “The Supreme Court and Myth: An Empirical Investigation,” Law & Society Review, Vol. 8, No. 3 (Spring, 1974), pp. 385–420.

[5] . The notion of secularism, being opposing to the history of the region and its nation, reference to secularism in the bill were removed and in its place, unlimited trust and faith in Almighty Allah were inserted. As such, in the 38 years since the framing of the Constitution, the citizens of the country have spoken their complete trust and faith in Almighty Allah for over 34 years. This place was changed by the High Court judgment. Every national shall have the right to form links or union

[6] Finkelman, Paul. Slavery and the Founders: Race and Slavery in the Age of Jefferson (M.E. Sharpe, 1996);

[7] See, Marshall, Thurgood, “The Constitution: A Living Document,” Howard Law Journal 1987: 623-28.

[8] It would validate all acts of the martial law regimes, including those that vandalised and tailored the constitution to cater for their political ambitions, removed the constitutionally entrenched ideals of the liberation war, recommunalised politics, stultified the development of political institutions, made politics difficult for politicians by creating political turncoats, installed pliable parliament through rigged elections, introduced military oligarchy with democratic outfits, hamstrung the rule of law for the rule of the jungle to prevail, and pursued sectarian interests.

[9]See,  Licht, Robert A., ed. The Framers and Fundamental Rights. American Enterprise Inst. Press, 1991. 194 pp.

[10] Absolute trust and faith in the Almighty Allah’ was made to be the basis of all actions in Art 8(1A) of the Constitution. Upon autonomy, Bangladesh issued the Adaptation of Existing Laws Order No. 48 of 1972, adopt certain laws and acts (of Pakistan) that were in existence and applicable in the East Pakistan prior to independence (such as the 1951 Citizenship Act) in order to fill up the gap created by the secession of Bangladesh from Pakistan. senate can choose and pick all acceptable elements of the Fifth Amendment and put a stamp of validity, even retrospectively if necessary.

[11] The Constitution Fifth Amendment Act, 1979 having defined citizens of Bangladesh as Bangladeshi and not as Bangalees does not exclude other national groups from the citizenship of Bangladesh. However, this beneficial amendment was deleted by the High Court Division. The notion of secularism, being opposing to the history of the region and its nation, reference to secularism in the bill were removed and in its place, unlimited trust and faith in Almighty Allah were inserted.

[12] See, Rakove, Jack N. Original Meanings: Politics and Ideas in the Making of the Constitution. Knopf, 1996. 455 pp.

[13] See, Mason, Alpheus Thomas and Donald Grier Stephenson, ed. American Constitutional Law: Introductory Essays and Selected Cases (14th Edition) (2004)

[14] See, Richard R. Beeman, Stephen Botein, and Edward C., Carter, II, eds., Beyond Confederation: Origins of the Constitution and American National Identity (University of North Carolina Press, 1987);

[15] After the nine month long war of liberation, Bangladesh was liberated and got its independence on 16 December 1971. Having been released from Pakistani jail, Bangabandhu Sheikh Mujibur Rahman returned to Bangladesh on 10 January 1972. The next day he, in the capacity as the President of Bangladesh, issued the ‘Provisional Constitution of Bangladesh Order 1972.

[16] See, Cooley, Thomas, A Treatise on the Constitutional Limitations, Boston. Little, Brown and Company, 1878.

[17] The Constitution confers power on Parliament to amend the Constitution. For such amendment there are some procedural requirements. For the amendment of Constitution the Bill must be passed by the votes of no less than two–third of the total number of members of Parliament. The President shall within seven days of the presentation of the Bill after being passed in Parliament with the requisite majority assent to the Bill and if he fails to asset within that time he shall be deemed to have assented the Bill.

[18] , John H. ed. Modern Constitutional Theory: A Reader 5th ed 2004; 820pp.