From top: Dublin city centre yesterday; David Langwallner

It is the not too distant future and The Supreme Court of Ireland in the light of a worldwide pandemic of mutant viruses and an escalating housing, eviction and homelessness crisis has been asked to consider whether a right to housing should be declared in the Irish Constitution.

A number of Plaintiffs are going forward in a group or class action of varying different circumstances some with health conditions of great severity which may disable them from working and certainly would make homelessness a life or death situation.

The argument before the court is this:

(i) Does Article 45 of The Constitution and the Directive Principles of Social Policy lead to the conclusion that a right to housing of an affordable nature can be derived from Article 45?

(ii) If so could such right at least protect against arbitrary eviction prior to consultation and a mediated or arbitral solution where there is a compromise of claims?

(iii) Could an unspecified right to housing be declared under Article 40.3 of the text with the appropriate limiters above?

(iv) How relevant is the right to life clause of the constitution in this respect particularly given the emergency that is faced.

This article is influenced by Lon Fuller’s The Case Of The Speluncean Explorers (1949) and addresses how different judges might evaluate the question. Given the emergency we face and constraints of time it is obviously not as considered as that opinion and the core and binding parts of the views of the justices have been culled. Some commentary as to real life events is also included.

Judge Positivist.

“This is a remarkable case that is before the court and one’s absolute sympathies go out to the plaintiffs in question and to the social predicament they find themselves in. There is no doubt that the country is in a state of perilous economic instability. But I am a judge and to a great extent thus my hands are tied.

“There is a great misapprehension from ordinary people of the role of the judiciary in such matters. First, under the doctrine of separation of powers I cannot interpolate or read my own views into the constitution. I am bound not to legislate but simply to parse and interpret the clear language of the text. Plain words must be given their plain meaning unless ambiguous. Thus there is no textual right to housing in the constitutional text and I am powerless to declare one. In point of fact where I do so I would be overstepping my role as a judge and engaged in the sin of legislation. Judicial sin that is.

“The doctrine of unspecified rights of reading rights into the constitution is remnant of a previous activist age of judges now no longer. I am constrained in the delicate balance of separation of powers and deference to the executive and those that have appointed me to behave in a judicial fashion and thus not to read extraneous and contestable matters into the text.

“I adopt my judicial philosophy from forebears in other jurisdictions such as Lewis Powell in the US and am thus a textualist and a literalist. To do otherwise would be to abnegate my judicial responsibilities.

As far as the right to life arguments is concerned and as far as one of the plaintiffs is concerned Ms. Murphy I am convinced that her life would be endangered by eviction without appropriate institutional support and I urge the appropriate authorities to support her.

But again the constraint sets in all I can do is declare that in her particular case her life would be endangered. I am powerless to do any more and cannot grant a mandatory order forcing the authorities who have appointed me to act in a certain way. It is regrettable and I hope the situation can be resolved but I cannot do anything.”

Judge Natural Lawyer.

“The constitution of Ireland is a thomastic document and thus its principles derive from St Thomas Aquinas and christian natural law. This has informed the court in declaring a long list of unspecified constitutional rights as long as they conform with “the christian and democratic nature of the state.”

“The net question is whether the right to housing is in conformity with those principles and I find it is. But of course no right is unconstrained but is resource dependent and subject to reasonable legislative responses and initiatives and constraints on fiscal expenditure. Nonetheless, these are exceptional times not least in that the right to life is also involved, in my view, for all of the designated plaintiffs.

“In the light of this I order in a mandatory way the appropriate state authorities to immediately and without delay house all of the plaintiffs in this case or cease and desist from the eviction process. Now this is not an unqualified endorsement that other evictions may not be acceptable but these plaintiffs, obviously carefully chosen, are in a perilous position and warrant protection. I am not making a generalised ruling but confining it to these plaintiffs though as an extra remedy I also hereby order that within 14 days the government implement an emergency housing plan to deal with sundry other claims.”

Judge Realist

“My fellow judges are far too concerned with the quiddities and oddities of legal precedent and a somewhat pedantic erudition. If you read the Irish Times today a paper not noted for its radicalism or sensationalism you will see pictures of armed police officers evicting people on behalf of landlords after the rent moratorium has ended. Thus many lives are at stake. Judicial notice should also be taken that our deeply right wing government in league with banks and corporate entities is disinclined to do anything about this that is quite apart from judgments about their individual or collective competencies.

“This is a case to be approached in a pragmatic non dogmatic way and to adjust constitutional doctrine to policy and present social norms. We are the custodians of our society and the gatekeepers. We have an obligation to implement laws in favour of the majority of the community and the majority are suffering.

I thus have no hesitation and in terms of legal realist doctrine to declare an unfettered right to housing for these plaintiffs and others who find themselves in a similar situation and if matters are not dealt with within 14 days at least in an emergency context contempt proceedings will ensue and can be instituted.”

Judge Marxist

“The neo liberal world order is in collapse and Ireland is the center of the storm with huge wealth cartelisation and a very uneven distribution of wealth. Any growth is being channeled out of the country to enrich foreign holdings and Canadian and American vulture funds. Even those that can pay their rent as in the Tyrellstown Estate are being evicted as the collective assets are being bought by Goldamn Sachs with their proxy vulture funds. We are on the brink of revolution and social and economic meltdown.

“In fact as the Nobel prize winning economist Stiglitz said it is socialism for the rich and capitalism for the poor. Disturbing ideas are surfacing about race and mixed race theories. A form of Spenglerian social Darwinism and of self endowed exceptionalism is dictating attitudes.

“We are in effect a post colonial nation being exploited by the forces of the world corprotrcay and Europe.

“As a judge of course I cannot instigate a revolution but I can in Gramsci terms create a revolution by stealth and hegemony and in those circumstances it is quite clear to me that the resistance of liberal elites towards the enforcement of social and economic rights has outlived its usefulness and I have no hesitation in finding a right to housing immediately enforceable within 14 days for all.”

An earlier text of this opinion was circulated and the judge removed from the court and impeached by the FG party for conduct ill befitting a judge. He sadly had a heart attack. In any event a safe pair of positive hands was appointed and the vote went the other way. All is happy in wonderland.

Judge Blueshirt Fascist

“I am very proud to be a member of the Fine Gael party and have worn the blue shirt uniform as my father and grandfather did. I have attended FG conventions otherwise known as rallys and know that the business of Ireland is business. Our business not their business. You are with us or against us.

I recently had lunch with the Taoiseach and he informed me how to vote in this case. A lot of money is being made by our friends in business and in government and our assets and interest would be jeopardised by a decision in favour of the right to housing. The poor do not vote for FG anyway unless they are deluded which of course many of them are. We have orchestrated a very good bread and circuses campaign for many years to ensure compliance.

The Taoiseach was most informative as to how a degree of social cleansing needs to take place so that the good burghers are protected. Our finances collectively are on the brink of collapse so in those circumstances and to protect my obligations and indebtedness to the banks as a result of unfortunate property speculation I am instructed specifically by my political paymasters to vote against a right to housing.”

Thus by a vote of 3-2 after much deliberation the right to housing is lost.

David Langwallner is a barrister specialising in public law, immigration, housing and criminal defence including miscarriages of justice. He is emeritus director of the Irish innocence project and was Irish lawyer of the year at the 2015 Irish law awards. His column appears here every Friday. Follow David on Twitter @DLangwallner

Previously: David on ‘Tomorrow Tonight’

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