This current appeal before me stems from the judgment of the learned justice Biddle in the Circuit Court. The facts of the case are dealt with succinctly within his judgment and do not merit repetition here. The issue before me is an issue of law, and should be decided as such. Crucial to the issue before me is the construction of Article 44. 2. of the Constitution 1937 and Section 56(2) of the Landlord and Tenant Act 1931. Article 44. 2. 3 provides as follows:
The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. Under Section 56, Subsection 2, of the Landlord and Tenant Act, 1931 (1), the plaintiff's consent to the assignment 'shall not be unreasonably withheld'. It is the construction of these two provisions that lie at the heart of the issue. It is notable that Article 44. 2. 3refers to 'the State' and not to private individuals.
In Commissioners of Public Works v. Kavanagh  I. R.216 the learned Justice ireann was supplanted by the new State under the Constitution of Ireland. ' In Comyn v. Attorney General  I. R 142 Kingsmill Moore J. concluded that the State was a juristic person distinct from the citizenry or the Government, just as a company is a legal entity distinct from its shareholders or directors. In Byrne v. Ireland  I. R. 241 Walsh J. expressed the relationship between the State and the people in the following language:
"[T]he State is the creation of the People and is to be governed in accordance with the provisions of the Constitution which was enacted by the People and which can be amended by the People only… " Nowhere in these judgments can it be gleaned that Article 44. 2. 3 is in anyway applicable to the case before me. Here we have a situation whereby two individuals have entered into a tenancy agreement requiring the consent of one party to the subletting by the other. The State is not involved, nor was it involved, if it were I would be bound to find differently.
However, that is not the situation in the instant case, and on this point I find myself in the position to declare that Article 44. 2. 3i?? is not relevant in this instance due to the circumstances of the case. Therefore it seems that this case falls to be decided on the construction of Section 56 subsection (2) of the Landlord and Tenant Act 1931. In the seminal case of East Donegal Co-Op Ltd v. Attorney General  IR 317 Walsh J. for the Supreme Court outlined the principle of statutory construction as thus (p. 341):
"[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  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  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.