The Constitution is clear – our homes are inviolable

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The Independent

August 16 2020

The Constitution is clear - our homes are inviolable

Vincent P Martin

In Ireland we have a written Constitution in which certain fundamental human rights are set out in black and white.

One of those relates to the home.

Put very simply, the Constitution guarantees the home as 'inviolable'.

'Inviolable' means 'never to be broken, infringed or dishonoured'.

We grant a near-spiritual status to 'home' - in the words of the Supreme Court the home is "set apart as a place of repose from the cares of the world complementing and reinforcing the dignity of the individual, the protection of the person, the protection of family life and the education and protection of children".

While all of this might seem bookish or academic, it has a real and powerful meaning in the world today.

Today's world is a precarious one for the most vulnerable in our society. For many, the supporting bonds of family or larger community are simply not there or are not strong enough to protect them.

It is therefore imperative the supreme law of the land stand strong as 'protector of last resort'.

A person may come from another part of the world; he or she may have little if any possessions and no system of friends or family to support them; they may be alone - but it is the greatness of our system that the full power of the Constitution and laws will defend their home against all-comers - and in so doing give them some repose from the cares of the world and recognise in some small way their human dignity.

Last week video footage emerged showing tenants being evicted from a Dublin property. Anecdotal evidence points to the wholesale breach of the constitutional guarantee.

This must be put right and we must learn from it.

I understand the victims are now back in their home, albeit the property and their belongings were reportedly badly damaged. It may be they will have recourse against the invaders - that is a matter for another time.

But of most importance to our country is we understand what happened and vow it never happens again. This must involve us reimagining the meaning and importance of our collective promise to guarantee the inviolability of the home.

If we look the other way, we will have weakened our entire constitutional structure - the sacred bond that knits this nation together.

The constitutional guarantee means that nobody can enter uninvited into another's home without the express sanction of a court.

Some landlords understand that, in practice, possession is nine tenths of the law. Why not just take possession without the bother of a court order?

But this is not the way of a civilised society - and in the Irish context it is anti-constitutional.

Courts have the power to make orders of possession and do so. But this takes time and can be expensive. Nonetheless, this process is the working out of our sacred promise made to ourselves - and it must never be set aside or truncated in any way.

An Garda Síochána play a uniquely important role in our community and have our greatest respect and gratitude.

They often find themselves caught up in civil law disputes - and experience shows that sometimes they can be unclear as to their role.

Their role must be clarified by the Garda Commissioner. An Garda Síochána should not adjudicate on landlord and tenant disputes, interpret the import of termination notices or assist evictions.

Where assistance is called for it is crucial that An Garda Síochána has sight of the court order and only then can it be involved.

And even then, where an order is being frustrated it is not the role of An Garda Síochána to enter a dwelling uninvited or to assist another forcibly to enter a dwelling.

They can explain the consequence of a failure to comply with the order - but that is as far as it goes. A failure to comply with an order of a court is a contempt of court. At that stage the court can order An Garda Síochána to arrest the person in contempt and bring them before the court so that the contempt can be explained or purged.

This is the constitutional process; a process that vindicates the constitutional guarantee protecting the home and all the guarantees that flow from this central commitment made by the Irish people.

Tenants, especially the most vulnerable and disadvantaged, need to be made more aware of the strong protections provided for in the Constitution.

In the programme for government it was agreed to hold a housing referendum which would, if passed, enshrine a right to housing in the Constitution.

This is important, but we must ensure we live up to our existing promises - especially that central promise made in 1937 when our Constitution was adopted.

Vincent P Martin SC is a Green Party senator from Kildare and a founder of New Beginning Lawyers which provided legal representation to homeowners facing repossession as a result of the last recession