Legal Writing Assignment

“[T]he long title and the general scope of the Act…constitute the background of the context in which it must be examined. The whole or any part of the Act may be referred to and relied upon in seeking to construe any particular part of it, and the construction of any particular phrase requires that it is to be viewed in connection with the whole Act and not that it should be viewed detached from it. The words of the Act, and in particular the general words, cannot be read in isolation and their content is to be derived from their context. Therefore, words or phrases which at first sight might appear to be wide and general may be cut down in their construction when examined against the objects of the Act which are to be derived from a study of the Act as a whole including the long title. Until each part of the Act is examined in relation to the whole it would not be possible to say that any particular part of the Act was either clear or unambiguous…”

Similarly, in Howard and Others v. the Commissioner of Public Works in Ireland  (1994) 1 IR 101 Denham J. stated (p.162):

“[S]tatutes should be construed according to the intention expressed in the legislation.  The words used in the Statute best declare the intent of the Act.  Where the language of the Statute is clear, we must give effect to it, applying the basic meaning of the words…”

Furthermore, she noted implicitly that failure to adhere to this principle of construction would be to usurp the function of the Legislature (p. 163):

“[T]he correct conclusion to be drawn is that the plain language of the Act must not be extended beyond its natural meaning so as to supply omissions or remedy defects.  The Court should neither misconstrue words so as to amend defects in the legislation, nor legislate to fill gaps left by the legislature.  If there is a plain intention expressed by the words of a Statute, then the Court should not speculate but rather construe the Act as enacted…”

From the above authorities, it seems to me, that Section 56 subsection (2) of the Landlord and Tenant Act 1931 must be interpreted in accordance with the plain ordinary meaning of the words used, however harsh, incongruous, contrary to common sense or even absurd the result may be.  Against this backdrop, the only true construction of Section 56(2) lends itself to the position that plaintiff’s consent to the assignment ‘shall not be unreasonably withheld’.  Effectively, the position of the defendant is irrelevant here.  The case falls to be judged on whether the plaintiff’s refusal of the assignment is a reasonable held one or whether is can be so described as being unjust.

To this end, I find the judgment of Gavan Duffy J.'s in Schlegel v. Corcoran and Gross [1942] I.R. 19 to be extremely helpful.  In that case, the plaintiff let rooms in her house for use a dental surgery by the first defendant’s late father.  The first defendant, who had succeed to his father’s interest in the tenancy, wished to assign that interest to the second defendant, a Jewish dentist.  However, the plaintiff, refused her consent, confessedly from anti-Semitic bias.   In a passage, Gavan Duffy J. stated:

“I cannot construe an enactment reasonable designed in general terms to undo a recognized injustice as operating incidentally to invent a novel and peculiar hardship by sanctioning and prescribing a wanton invasion of the reasonable amenities of a lady’s home. The Court in any such case would, I think, have to ask itself (and the contiguity anticipated and other factors may make the question one of degree) whether the thrusting of the newcomer upon her would, on the facts, amount to a denial of the reasonable autonomy which a citizen may naturally claim in and over her own residence even after letting some of its rooms; and on an affirmative answer she would prevail, even though the Judge were not himself personally impressed by her particular bogey, such would be the case where the owner withheld her consent from a reasonable apprehension founded on the profound and enduring nature of an incompatibility well understood, even when deplored, that the probable contacts and annoyance and irritation ensuing upon the intrusion would blight the serenity of her daily life, one of the most precious amenities of a happy home; and such, In my judgment, is the case with the plaintiff’s objection to admitting Mr. Gross, whether put on racial or religious grounds or on both; and I hold that Mrs. Schlegel, in her honest effort to defend the amenities of her residence, is entitle to the protection of this court…”

The factual scenario that I am faced with is almost identical.  The plaintiff in protection of her private property, has three reasons to refuse the consent, albeit on grounds that are disapproved by this court.  In an era after the devastation cause on September 11th 2001, terrorism, or the ‘war on terror’ is a clear and present danger to every citizen living within the State and beyond.  Against such a backdrop, a fear that her amenity might be used as a centre for Global Jihad, is a reasonable fear. Whether it is groundless, remains a matter for another day, as the defendant is not on trial today.  Furthermore, in the era in which we live, other person’s to may also have the same concerns – and as such, there would be a real possibility that he value of her property may declined.  Finally, an abhorrence of non-Christians, cannot be unreasonable having regard to the Constitution.  As I stated previously, had the State been involved in this case, I would be bound to find differently.  However, that is not the case.  The Preambles to the Constitution invokes ’the Name of the Most Holy Trinity’ and continues by ‘acknowledging all our obligations to our Devine Lord, Jesus Christ, who sustained our fathers through centuries of trial…’. As O’Higgins C.J. in Norris v. Attorney General [1984] I.R. 36 said (p. 64):

“[The preambles to the Constitution proudly asserts the existence of God in the Most Holy Trinity and recites that the people of Ireland humbly acknowledge their obligations to .our Divine Lord Jesus Christ…”

How can a personal  dislike of non-Christians be unreasonable having regard to this?  In my opinion, it cannot be unreasonable.  Therefore, I feel bound  from the foregone conclusions to dismiss the appeal of the defendants and find in favour of the plaintiff.

CRITIQUE

The primary reasoning for the finding for Noreen on the non-applicability of Article 44.2.3° was due to having regard to the literal interpretation of the Constitution.  While one could argue that the ‘broad’ and ‘harmonious interpretation’ approaches to Constitution interpretation are on the ascendance, I found the reasoning of O’Higgins CJ in The People (DPP) v. O’Shea [1982] I.R. 384 where he said the following to be applicable:

“[T]he Constitution as the fundamental law of the State, must be accepted, interpreted and construed according to the words which are used, and these words, where the meaning is plain and unambiguous, must be given their literal meaning.  Of course, the Constitution must be construed as a whole and not merely in parts, and, where doubts r ambiguity exists, regard may be have to other provisions of the Constitution and to the situation, which obtained and the laws, which were in force when enacted.  Plain words must, however, be given their plain meaning unless qualified or restricted by the Constitution itself…”  

Secondly, the interpretation of Section 56(2) of the Landlord and Tenant Act 1931, I feel is in keeping with the doctrine of construction.  It is for the legislature to remedy any error or unintended consequence emerging from legislation, subject to long established tenets of construction, words in a statute should be construed in accordance with their plain, ordinary meaning.  Having regard to such principles the only construction of the wording of Section 56(2) of the Landlord and Tenant Act 1931, the whether the plaintiff’s consent was unreasonably withheld.  Nowhere in that section is there a reference such has ‘with due regard to the other party…’ or a definition of impermissible objective discrimination, such as ‘based on religion, ethical origin, sex, etc…’ which if inserted would have a different outcome.  To find otherwise would be to usurp the constitutionally conferred powers bestowed on the Judiciary;  in effect, to disregard the separations of power proscribed by the Irish Constitution.  

The third reasoning for the finding, is that the rule of stare decisis generally demands that judges must ‘follow’ previous decisions.  These precedent cases thus bind a court of similar jurisdiction in subsequent cases with the result that the court generally cannot depart from previous decisions unless; the facts are completely different and as such can be distinguished, which was not the case in the factual scenario; or the law has changed, with was also not the case.  Finally, justice overwhelmingly demands that the precedent be departed from.  The last point would be the sole issue of contention.  However, in must be noted that, as my finding shows, there is a generally fear of terrorism, with is not new to this country, but which has been substantially increased after the happens of September 11th and as such it could be arguable that justice does not overwhelmingly demand the departure from this precedent.    

However, the ruling could be challenged.  Two authorities for which are to by found in the leading textbooks on Land Law and Constitutional Law.  In the latter, Casey argued in the light of later decisions, however, it is arguable that [Schlegel v. Corcoran] was wrong.  While the State normally acts through the executive and the Oireachtas it also acts through the courts; and a court may not, therefore, ratify acts of religious discrimination by private parties’.   Further pointing out that ’the courts would now have to apply Section 56(2) in conformity with the Constitution [Garvey v. Ireland [1981] I.R. 75] and this would seem to preclude the view that religious discrimination is ‘reasonable’.  Similarly, Lyall pointed out in reference to the statutory test provided in Section 56(2) ‘that reasonable is opposed to arbitrary and capricious.  A refusal on the ground of race or religion arguably falls within the latter category’.

The judgment of United States Supreme Court is intrusive, albeit persuasive authority.  In Shelley v. Kramer (1948) 334 U.S. 1 where it was held that a State court could not constitutionally lend its aid to the enforcement of a racially restrictive covenant attached to property.  To do so would constitute action by the State in violation of the Fourteenth Amendment’s equal protection guarantee.