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Resolving legitimacy problems: a case study of the shooting in Taiwan's 2004 presidential election.

Fierce debate continues over Taiwan's 2004 presidential election. The election-eve shooting of President Chen Shui-bian and Vice President Annette Lu is the pivotal factor in these discussions. Most analyses of the shooting incident have been more focussed on inferring the truth about this criminal case, and debate about whether or not the incumbent president benefited from this shooting. (1) However, when solving a criminal case without significant and direct evidence, any hypothetic deductive logic is just one possibility. The opposition, which lost the presidential election by 0.2 per cent of the vote, accused the incumbent bloc of using the shooting incident to mislead voters into sympathising with Chen Shui-bian. (2) These contentions inevitably caused the legitimacy of the 2004 Taiwanese presidential election results to be questioned.

The concept of legitimacy contrasts with the concept of legality. As a great deal of the classic literature in politics and jurisprudence has already discussed these concepts, no attempt is made in this article to discuss them in detail. The focus here is on forward-looking thinking--how to reduce the possibility that any such incident like the 2004 election-eve shooting could occur in the future. (3) The article begins by considering the normative aspect: Should any legitimacy be given to the outcome of the presidential election? Then the positive aspect is examined: How do we redeem the legitimacy of the presidential election results? How do we avert doubts about the legitimacy of future presidential elections? Accordingly, the specific purposes of this article are: firstly, to show the difficulty in resolving the current dissension over the legitimacy of the 2004 Taiwanese presidential election results during the process of seeking answers for the normative and positive questions; and secondly, to remind researchers of the importance of the forward-looking aspect of this serious issue.


The focus here is on the benchmark approach abstracted from Ronald Coase by Bingyuang Hsiung. (4) Coase's approach can be summarised as follows: setting a reference point, treating this point as a benchmark and then comparing and contrasting this benchmark with the selected topics. Hsiung also suggests: "When we apply the benchmark approach, we have to consider why to choose this benchmark point but not the others." (5) In economics, benefit and cost are mentioned in the same breath, and cost-benefit analysis is also a useful tool in many studies. For example, if the expected benefits of a specific policy are greater than the expected costs, then implementing the policy will add to total social welfare. Nonetheless, the benefit of Taiwan's presidential election results without legitimacy problems may not be easy to measure. For individuals, the benefits of legitimacy are highly subjective. When the outcome of an election is legitimate, some people may be quite satisfied with it, but others may not care. How can we compare, for different people, the degree of benefit in having no legitimacy problem; or how can we use a measurable index to make comparisons? Even if some indirect measurements are used, the results of comparison may not be clear.

When the outcome of an election lacks legitimacy and needs resolution, using the concept of costs is clear and objective. In the case of the 2004 presidential election in Taiwan, if a re-vote is one method to redeem its legitimacy, then the functional expenses that Taiwan's Central Election Commission (CEC) would pay for holding the re-vote is a definite cost. If a multi-party political consultation is another method to redeem the legitimacy of the presidential election results, then the resources that the two rival blocs need to invest in the consultation are measurable costs. For instance, each bloc may need to hold its own plenary session to reach common consent, and the two blocs may negotiate many times with each other about confirming the legitimacy of the presidential election results. For individuals who care very much about legitimacy, the loss of wages when attending a demonstration is also an estimable cost. Moreover, when discussing how to prevent any doubt about the legitimacy of future presidential elections, it is easy to use the concept of costs to decide which precautionary method is better. This implies that the precautionary method with the lower costs is worth putting into practice.

Another reason for choosing costs as the reference point is the inspiration gained from the concept of loss aversion in prospect theory. (6) For simplicity, let (x) denote the benefit of Taiwan's presidential election results without legitimacy problems, (-y) denote the cost of redeeming legitimacy when the outcome of the election lacks legitimacy, and U(.) denote the value of (.) to people. The concept of loss aversion can be expressed by

[absolute value of U(-y)] > [absolute value of U(x)].

The inequality suggests that people's psychological sense of paying costs to redeem legitimacy is stronger than their psychological sense of gaining benefits from a legitimate election result. Prospect theory predicts that if the reference point is (x), then U(x) will be concave, and the average person will become more risk averse--they have less incentive to look forward. If the reference point is (-y), then U(-y) will be convex and the average person will become more risk seeking--they have more incentive to consider forward-looking thinking. Figure 1 portrays this graphically. The author regards it more effectual to encourage people to consider forward-looking thinking by emphasising the costs of redeeming legitimacy rather than to emphasise the benefits of having no legitimacy problem.


Coase's approach has additional features which are worthy of use here. Ning Wang points out that "the case study, a method that has almost disappeared from the repertoire of contemporary economists, is Coase's favourite". (7) Elodie Bertrand has also argued that Coase's own method consists of empirical case studies and comparisons of institutional arrangements. (8)

When considering precautionary measures with a forward-looking angle, hypothetical thinking (which is usually used by researchers who analyse law and economics problems) is adopted to analyse the following questions: (9) first, if Taiwan's Presidential and Vice Presidential Election and Recall Law (PERL) had provision for a sudden incident such as the 2004 election-eve shooting, then how would the relevant articles be written?; and second, if a shooting incident has occurred, the CEC and two rival blocs should ask themselves: If the PERL had considered the risks of a sudden incident, how would the articles have ruled and what steps would have been taken?

Different people face different costs, and different costs constitute incentives, so utilising hypothetical thinking to deal with lingering doubts about the legitimacy of the 2004 Taiwanese presidential election results is assuredly difficult. However, hypothetical thinking can help us formulate possible precautionary measures.


If the outcome of Taiwan's presidential election in 2004 had no legitimacy problem, then Taiwanese society need not pay any costs. First, people who demonstrated against the result of the poll had to face their own opportunity costs and possible medical care expenses resulting from physical injuries sustained during the demonstrations. Public sectors (especially the police) also had to spend resources on maintaining social order and stability. Second, life on Taiwan came to a stop because the authorities did not pay significant attention to other important issues. The incumbent government was busy with the dispute (dealing with the polarised and rival public opinion) over the legitimacy of the election results. Third, the party in power as well as the parties out of power sought foreign support and many overseas Taiwanese protested against the outcome of the election in different countries. Their actions harmed Taiwan's international image and may also have damaged Taiwan's independent sovereignty. For example, the fact that Douglas Paal, the Director of the Taipei Office of the American Institute in Taiwan at the time, had meetings with the leaders of both the incumbent and opposition blocs after the balloting day, urging them to do something could be treated as an exogenous wound to Taiwan's independent sovereignty. (10) Meanwhile, a possible endogenous wound to Taiwan's independent sovereignty was the expectation by some people in the opposition bloc that the United States would intervene as they did following the Haiti leadership dispute in 1994. (11)

Therefore, demanding legitimacy for the 2004 Taiwanese presidential election results as soon as possible, and eradicating all doubt could reduce the above three types of costs. Furthermore, if doubts about the legitimacy of the outcome of the election can be wiped out, a precedent for future presidential elections will be created and Taiwanese society will not need to pay such enormous costs in future should there be another sudden incident at election time. (12)

Comparative Cases

Stabbing of Tennis Player

The first empirical case used for comparison occurred in 1993. During the rest break in a quarter-final match in Hamburg, Monica Seles was stabbed in the back by an unemployed German lathe operator. She was the world number one women's tennis player and the attacker wanted to injure her so that his idol, Steffi Graf, who was the world number two women's tennis player could become the world number one again. The physical wounds healed relatively quickly, but Seles did not recover immediately from this incident. She stayed away from competitive tennis for more than two years and Graf regained the world number one ranking. (13)

Because Seles and Graf were competing to become the world number one women's tennis player, both were the primary characters in this case. Nevertheless, other players were secondary actors because the worldwide ranking of women's professional tennis is composed not only of a player's performance in tournament play but also her record against other players. After Seles was attacked, Graf became unbeatable in women's tennis, but the legitimacy of her world number one position was disputed by some players and fans. How did the Women's Tennis Association "TA), in the role of a quasi judge, deal with this dispute? When Seles returned to competitive tennis in 1995, the WTA ranked her "a co-ranking of number one for her first six tournaments, or twelve months from the date of her first tournament" (later, a special method was used to calculate Seles's rankings). (14) The WTA's unprecedented decision redeemed the legitimacy of the WTA rankings and was accepted by the other major tennis players as well as the fans.

Shooting of Dutch Politician

The second empirical case occurred in 2002. The Dutch far-right politician, Pim Fortuyn, was shot and killed only nine days before the general election. The day after the assassination, the Prime Minister at the time, Wim Kok, convened an emergency session of political leaders, including officials from Fortuyn's party, to decide whether or not to postpone the elections. Several political parties called for a halt in the campaign but thought it would be unnecessary to defer the balloting day. Thus, Kok decided the polls would go ahead as planned. (15) Thus, in this case, Kok, could be looked upon simultaneously as a player and judge. He ensured the legitimacy of the parliamentary elections outcome by convening the emergency consultative conference. Though his party finally lost that election, it still acknowledged the 2002 Dutch general election results without dissent. (16)

What can we draw from the above cases? The first case implies that those who acted as the judge, such as the WTA, play a key role when seeking legitimacy. The remedial measure taken by the WTA did not meet with opposition and so it could be considered as a low-cost method for redeeming legitimacy. The second case shows that the incumbent head of a state, who is treated simultaneously as a player and judge when seeking re-election, succeeded in averting any possible attempt to deny the legitimacy of the general election results by calling, on his own initiative, a consultative conference just one day after the murder. This was also a low-cost method to prevent doubts about legitimacy.

The second case is the more similar to the 2004 Taiwanese presidential election. The Netherlands uses the parliamentary system and Fortuyn was one of several hundred candidates. Taiwan, however, uses the semi-presidential system and President Chen Shui-bian was one of only two candidates. Moreover, the Dutch assassination occurred nine days before the general election balloting day, while the shooting incident in Taiwan occurred only twenty hours before the presidential election balloting day began. During this short period, the incumbent bloc may not have actively proposed whether or not to postpone the presidential election because it was lacking its highest leader. In the first comparative example, the WTA could be treated as a judge with the highest power in women's tennis. But in Taiwan, there is no judge whose power could be higher than the incumbent president. Therefore, it was inevitable that Taiwan could not find a low-cost way to deal with doubts surrounding the legitimacy of the outcome of the 2004 election.

Precisely due to the loss of a good opportunity to use the above low-cost methods to remove the doubts surrounding the legitimacy of the 2004 Taiwanese presidential election results, there are few follow-up choices. Whereas the legitimacy of the presidential election results has been already questioned, a multi-party political consultation for retroactively recognising the legitimacy of the presidential election results and a re-vote agreed to by the two rival blocs may be the only two imaginable choices. For the former, even though the opposition parties would be willing to acknowledge their loss in the presidential election, their supporters would not necessarily be persuaded to accept the loss if there was already an atmosphere of questioning the legitimacy of the general election results. In fact, the several demonstrations that took place after the shooting did not focus only on who won the election, but on the legitimacy of the whole process of the presidential election. (17) Hence, if it would be difficult to persuade the masses, it is reasonable to assume that the multi-party political consultations would incur high costs. If the present incumbent president agreed that a re-vote was the correct solution, his supporters may not be as easily persuaded and may protest vociferously. Moreover, the resources that Taiwan society would need to spend on a re-vote should be included. Thus, this option would also incur a high cost. There are only a few ways to deal with the doubts surrounding the 2004 election and each one involves fairly high costs. It was the high expected cost that ceased any incentive on the part of each political bloc to adopt some of the measures discussed above.

If Taiwan's case is examined in terms of a forward-looking perspective, preventing doubts about the legitimacy of future presidential elections could be more constructive. The first step is to introduce hypothetical thinking. In the following two examples, the rules or laws which definitively regulate hypothetical incidents already exist.

Let us assume that teams A and B play a basketball game, and team A is in control of the ball. When team A's centre player is taking the ball and attempting a goal shot from near the backboard, an audience member suddenly throws a bottle onto the court and it hits the centre player's hand. The ball drops from his hand, and the perfect opportunity to score immediately disappears. According to the Official Basketball Rules of the International Basketball Federation (Federation Internationale de Basketball, FIBA), "if the game is stopped by an official for any valid reason not connected with either team ... the ball shall be awarded to the team that previously had control of the ball with a new 24 seconds". (18) In other words, if the referee stops the game because either a spectator or a foreign matter enters the court, then the game will be resumed with a throw-in for team A with a new 24-second period. (19) When the game continues with the new 24-second period for team A in control of the ball, the legitimacy of the basketball game is guaranteed. No matter who throws the bottle and no matter his motive, the impact on the game, which stemmed from the sudden incident will be small because the FIBA has enacted rules and related interpretations in writing to regulate hypothetical events. Neither team will challenge this judgment, nor have any reason to raise any objection. Thus, it is a low-cost precautionary measure and averts any doubt about the legitimacy of any game.

When the election-eve shooting occurred, the PERL had not hitherto laid out in explicit terms how to handle sudden, serious incidents. Is there a figurative connection between the basketball game and the presidential election? (20) Could PERL have declared a halt to the election? In reality, owing to the fact that the incumbent bloc held the judgment powers, it was convenient and cost-saving for them that they were not active in suggesting a postponement to the election. It was impossible to use hypothetical thinking to handle doubts about the legitimacy of the election on the eve of voting because there was insufficient incentive for the incumbent bloc. Nonetheless, when considering how to design precautionary measures, hypothetical thinking at least gives us a hint. For future elections, it may be relatively inexpensive to use statutes or institutions to manage a sudden incident such as the shooting to forestall any doubt about legitimacy. If the PERL had considered the possibility of a sudden incident, the power of the incumbent bloc to act simultaneously as a player and judge would be restricted by the law and the opposition bloc would also have to abide by the law.

National Examinations Regulations

The current Taiwanese Regulations for Handling Incidents in National Examinations (RHINE) includes the following article:

In the event of typhoons, earthquakes, air raids, floods, fire or other major disruptive events which prevent the administration of examinations in all or in some subjects, the Chair of the Board (or Committee) of Examiners shall, in consultation with the Ministry of Examination, proceed in accordance with the following regulations:

(1) Where such an event occurs prior to the administration of an examination, the examination shall be rescheduled on another date, and the agency administering it shall assume the responsibility of publicly announcing the postponement.

(2) Where such an event occurs during the administration of an examination, if the said examination is being administered in separate districts, all such districts shall be instructed to halt the examination. Those subjects yet to be examined shall be rescheduled on another date.

(3) Where a major disruptive event as described in this Article occurs after the distribution of examination papers for the various subjects, the examination papers shall be collected immediately and in their entirety. If the examination time elapsed at that moment has not yet reached one-half of the allotted time, that examination and examinations in the remaining subjects shall be rescheduled. If one-half or more of the allotted examination time has already elapsed, the examination in that subject shall not be rescheduled; however, the examinations for the remaining subjects, or for subjects in which it has not been possible immediately to collect the papers, or in examination categories which specifically require qualification in certain subjects, shall be dealt with in accordance with the regulations set out in the preceding subparagraph. (21)

The above instructions indicate that law-makers had hypothetical thinking in their mind and that they considered all possible details for maintaining the legitimacy of every national examination result. In Taiwan, passing a national examination is a fundamental requirement for becoming a public servant (equivalent to almost a lifelong job guarantee). For each examinee, the legitimacy of the national examination results is crucial. Everyone wants the exams to be fair and impartial. (22) The above regulations have indeed taken effect under many unexpected circumstances. Thus, the RHINE guarantees the legitimacy of the national examination results in a low-cost way.

Going back to the basketball game, when the bottle is thrown onto the court, if the game keeps going and there is no doubt about its legitimacy, the two teams may switch offensive and defensive status. If the final score is against some audience members' expectations, they may never watch team A or team B play again. The result of one game directly affects the staff and players of both teams only if we assume there is no sport gambling in this example. The continued impact may be that one team will be eliminated, or one will win a title.

In politics, each qualified voter is a participant who can influence the final vote. It is not the same situation as a basketball game where the members of the audience are merely spectators. Therefore, voters' doubt about the legitimacy of the Taiwanese election is thus similar to examinees' immediate concern about the national examination. If we add hypothetical thinking which can be extracted from the RHINE to the PERL, then it is possible that Taiwan could find a low-cost way to prevent doubts about the legitimacy of future presidential elections.

For instance, Taiwan's Congress, the Legislative Yuan, could try to amend the PERL and related statutes in order to force itself to convene an emergency meeting immediately should a grave incident occur before balloting day. This meeting can decide whether or not to suspend the campaign and postpone the election. (23) A clear definition of grave incidents, which might occur during the campaign period, and the exact timing for convening an emergency meeting must be determined by legislators' common consent in the legislative process. If the additional (marginal) cost of the legislative process for amending the PERL and related statutes is no more than the average cost of the legislative process for amending or enacting other laws and statutes, these amendments could be considered an institutional arrangement that creates a judge whose power is higher than the incumbent president when a grave incident (especially one directly involving the candidates themselves) occurs. That is, this institutional arrangement gives the Legislative Yuan authority to take steps to end any possible doubt about the legitimacy of the presidential election results. In a society such as Taiwan, which lacks trust, (24) the above institutional arrangement may be one of few ways to permit Taiwanese people of different political persuasions to deal with a sudden grave incident such as the 2004 election-eve shooting in a timely manner.

Another precautionary method is to prevent grave incidents from occurring during the election period, i.e., from the proclamation of candidate registration to the balloting day. Even though the police and homeland security sector spend a great deal on prevention, it is impossible to guarantee there will not be any grave incident in future elections. There will always be someone who tries to influence the election results if there is no institutional arrangement to deal properly with such incidents even though their probability may be very low. That is, the potential obstructionists will still have incentive to destroy the legitimacy of elections if they know there is not an effective mechanism for handling them. On the contrary, if there are clear institutional arrangements already in place, potential attempts to influence the election results will be eliminated. Hence, an applicable institutional arrangement can be a low-cost precautionary method to reduce obstructionists' incentives.


The election-eve shooting of President Chen Shui-bian and Vice President Annette Lu on the eve of Taiwan's presidential election in 2004 was not only a shock for Taiwan but also for other concerned countries. The concept of costs as the benchmark point is used here and it is concluded that resolving the current dissension surrounding the legitimacy of the 2004 election is practically impossible. Accordingly, why do we look only backwards at the shooting, but not forward to other potential incidents? Preventing doubts about the legitimacy of future presidential elections should be the focus of attention now.

Under the condition that the marginal cost of amending the related laws is not too high, a proper institutional arrangement may deter those who attempt to influence future elections. As Mencius said, "Virtue alone is not sufficient for the exercise of government; laws alone cannot carry themselves into practice". (25) Thus, the precautionary measures listed above may not reap instant results in Taiwan where "rule of man" is common practice. However, if we focus on how to handle sudden grave incidents so as to prevent doubt about the legitimacy of future presidential elections, forward-looking thinking is a good start for researchers who are interested in this issue.

An earlier version of this article, entitled "The Demand of Legitimacy and its Costs: A Reconsideration of the Shooting on the Eve of Taiwan's Presidential Election in 2004", was presented at the "Asian Studies on the Pacific Coast 2005 Conference" on 17-19 June 2005 in Claremont, California.

The author thanks Arthur T. Denzau and two anonymous reviewers of China: An International journal for their constructive comments and suggestions.

(1) See Hongxi Li, "Zhongtong dangxuan wuxiao panjue baisu (Chinese Nationalist Party and People First Party Lose the Lawsuit for the Nullification of an Electee's Status)", Taiwan Daily, 6-7 Nov. 2004, p. 3.

(2) For more foreign views on this debate, see Perry Anderson, "Stand-Off in Taiwan", London Review of Books 26, no. 11 (2004), at <> [14 Apr. 2005]; and David M. Lampton and Travis Tanner, "Taiwan's Elections, Direct Flights, and China's Line in the Sand: Implications for Washington, Beijing, and Taipei" on the Nixon Center website (9 Aug. 2005), at <http://www.nixoncenter. org/Monographs/China%20Studies%202005/Taiwan'sElections,DirectFlightandChina's LineintheSand.pdf> [30 June 2006].

(3) For rudimentary thoughts about this forward-looking thinking, see Sanging Lin, "Ruo disanren qitu yingxiang xuanju jieguo (If the Third Person Attempts to Influence the Result of the Presidential Election)", The United News, 23 Mar. 2004, p. A15.

(4) Bingyuang Hsiung, "A Methodological Comparison of Ronald Coase and Gary Becker", American Law and Economics Review 3 (2001): 188.

(5) Bingyuan Hsiung, Dr. Bear's Random Walk in Law (Taipei: China Times Publishing Co., 2003), p. 216.

(6) See Daniel Kahneman and Amos Tversky, "Prospect Theory: An Analysis of Decision under Risk", Econometrica 47 (1979): 263-92.

(7) Ning Wang, "Coase on the Nature of Economics", Cambridge Journal of Economics 27 (2003): 814.

(8) Elodie Bertrand, "The Coasean Analysis of Lighthouse Financing: Myths and Realities", Cambridge Journal of Economics 30 (2006): 389.

(9) See for example, Richard A. Posner, Economic Analysis of Law, 6th edn. (New York: Aspen Publishers, 2003).

(10) See the Bureau of International Information Programs, US Department of State, "State Department Noon Briefing, March 23,2004" on the website, at < mil-040323-usia02.htm> [10 Dec. 2006].

(11) See Zhongxin Hu, "Kongju yu wo shi shuangbaotai (Fear and Ego are Twinborn)", Lianhe zaobao, 1 May 2004, at < pages6/taiwan010504c.html> [10 Dec. 2006].

(12) For a solid study about legitimacy, see David Dyzenhaus, Legality and Legitimacy. Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (England: Oxford University Press, 1997).

(13) See Dick Heller, "Seles' Career Took Downturn After 1993 Stabbing", The Washington Times, 25 Apr. 2005, at <> [1 May 2005].

(14) "WTA Tour Notes and Netcords", on the Tennis Server website (24 July 1995), at < 7 24 95.html> [14 Apr. 2005].

(15) See David Graves, "Dutch Assassin is Militant Green Activist", Telegraph, 8 May 2002, at < wfort08.xml> [14 Apr. 2005].

(16) See "Breakthrough for Right in Dutch Poll", BBCNews, 16 May 2002, at <http://news.> [14 Apr. 2005].

(17) See "Pan-blue Protesters Take a 'Stroll' down Ketagalan Boulevard", Taipei Times, 18 Apr. 2004, p. 3.

(18) FIBA Central Board, Official Basketball Rules 2006 on the FIBA website (31 Mar. 2006) at <> [1 May 2006].

(19) FIBA World Technical Commission, Interpretation of the Official Basketball Rules 2000, on the UKS NS website (Sept. 2000) at < slike/edukacija/interpretacije/FIBAW%20Interpretations%20September %202000.pdf> [1 May 2005].

(20) The CEC enacted internal directions (at the end of 2004) to proceed when natural calamities or other force majeure events occur on the balloting day. However, the CEC focus only on whether poll stations and ballot-opening stations can administer affairs relating to the casting and opening of ballots on the planned balloting day. These directions do not mention anything about grave incidents related to candidates themselves that may occur prior to the balloting day. See Taiwan Government, Center Election Commission, Toupiaori yuyou tianzai huo qita buke kangli qingshi chuli yuanze (Directions to Proceed when Natural Calamities or other Force Majeure Events Occur on the Balloting Day) at <> [1 May 2006].

(21) Taiwan Government, Ministry of Examination, Regulations for Handling Incidents in National Examinations at < ctNode=2236> [1 May 2006].

(22) People's expectations about the impartiality and fairness of Taiwan's national examinations are inherited from the civil service examinations in imperial China, which have approximately 1,300 years of history. For more details about the imperial civil service examination system in ancient Chinese history, see Ichisada Miyazaki, China's Examination Hell: The Civil Service Examinations of Imperial China (New Haven: Yale University Press, 1981).

(23) Similar logic can be found in the Turkish Constitution. Turkey's Parliament, the Turkish Grand National Assembly, has the right to defer Parliament elections if some grave incident (such as a war) occurs. See Republic of Turkey Constitution, Article 78 at <> [1 May 2006].

(24) See Chang-kuei Lee, "Taiwan in Quagmire", Taipei Times, 30 Dec. 2000, p. 9.

(25) Mencius, The Works of Mencius, Book IV, Part I: Li Lau, at <> [5 Apr. 2007].

Tzu-Wen Sung ( is teaching at the Department of Global Politics and Economics, Tamkang University. He earned his PhD in economics from Claremont Graduate University and his main research interests are public economics, political economy and economic analysis of law.
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Author:Sung, Tzu-Wen
Publication:China: An International Journal
Geographic Code:9TAIW
Date:Sep 1, 2007
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