What is truth?



By Jonathan Kozol. U.S Educationalist

Housing is a human right. There can be no fairness or justice in a society in which some live in homelessness, or in the shadow of that risk, while others cannot even imagine it.”

Jordan Flaherty, Floodlines: Community and Resistance from Katrina to the Jena Six

 Housing A National Scandal:

It is intrinsic to the sustainability of any social structure that people are adequately fed, clothed and housed. This may seem rather primitive and basic assertions that need no explanation or contradiction but of course in the last respect at the very least The Irish State is not providing for adequate housing for its citizens or intervening to ensure that such accommodation that is provided is adequate and affordable. They are also tolerating an epidemic of evictions by banks and vulture funds that they have not adequately regulated and permitted to engage in unfair commercial practices often in breach of both consumer protection and EU law. The non intervention in the banking structure which should have led to nationalisation or a significant measure of state control has led to the secretive deal making in the deeply suspect NAMA and a banking inquiry compromised from the outset. All of this has been premised on the voodoo logic of neo-liberalism, which has led to a homelessness and eviction epidemic threatening, and it is no exaggeration to say so, the very fabric of our society.

In fact the level of our homelessness in Dublin city center in particular has reached a point that there is almost a surreal zombie like feel to the atmosphere of late at night.

We have become socially displaced and dislocated nation where many of our citizens do not feel part of a society that has clearly abandoned them. In terms of my professional experience as a lawyer I have only once before witnessed such social collapse and that was when I worked in New York in the early 90’s. The scenes on Dublin streets also remind me of a recent visit to Nairobi where I litigated a death penalty case where multitudes walk the streets and fields in a non-directional aimless way.

The question arises what causes such matters and what can be done.

First, it is obvious that the root cause, now at a distance, was our banking collapse the levels of responsibility for which among our top lawyers, civil servants and bankers have never been adequately probed or explained even after the utterly ludicrous banking inquiry which did not have access to anything like the requisite documents concealed under a smokescreen of legal man oeuvres. The banking inquiry I have written elsewhere was a poorly performed French farce but in point of fact it was a good deal more sinister than that and the controlling cartel of our increasingly plutocratic society have just cause to feel they aborted or fended off serious scrutiny. It was noble and morally correct of Pearse Doherty and Joe O’ Higgins not to sign their names to such a charade.

The solution at the time was of course not to defer to the decidedly unstructured non-intervention in the internal affairs of banks or the self-interested club that NAMA has been since inception but to nationalize the banks and/or regulate them in such a fashion that they honor their promises and act responsibly and fairly.

This of course has not happened. As a postcard from the edge and a view from the law library trenches on all of this the banks have continued a sustained policy of reneging on promises bartered with consumers at a time of high ostensible economic prosperity by refusing their contractual obligations to revert the consumer to a tracker mortgage after the expiry of a fixed rate period. Significant litigation in the Four Courts is now geared at understanding precisely what went on in this context.

Further, banks with no interest in Ireland Danske Bank and The Bank of Scotland in particular simply left the room and disposed of their assets hiking up the mortgage interest rate payments and/or selling the assets off to the underworld of vulture funds, a curiously apt word to describe the predatory behavior of such entities.

In point of fact the banks also bundled assets. In a particularly scandalous case now wending its ways through the court structure Danske Bank refused a repayment offer of €90,000 from the consumer and then sold the house via receiver to a composite property portfolio which often consist of American and non national investors at the bargain basement price of €60,000. This is simply an outrage devoid of any ethic of moral justification other that that of naked corporate greed. And yet like the tracker issue it passes unregulated and unprobed. Recent reportage suggests that the vulture funds are now gathering with a plethora of mass evictions on the cards.

Further, the vulture funds are in essence profiteering often massively from human misery and something needs to be urgently done so as to ensure how much they in point of fact paid for the asset rather than how much they are in effect hitting the consumer for in effect the hyper inflated market price of the debt.

The tolerance of unscrupulous behavior of banks and vulture funds is in effect the tolerance of an unregulated wildcatting neo liberalism, which profits the privileged few and is simply not compatible with fairness and egalitarianism so essential to the existence of a just society. Our society has become in effect a plutocracy dedicated to the preservation of the few at the expense of the many.

It should also be stressed for in the interests of candor that there is seemingly an ideological preference amongst much of the judiciary to uphold the practices of banks and vulture funds in a misplaced belief system that this ethically or morally or in many cases legally appropriate. Such a vantage points shows scant empathy or understanding of the plight that ordinary people find themselves in.

The consumers often stand-alone as lay litigants given the parlous nature of our legal aid system against well paid and often tag teams of lawyer representing banks often fully abreast of every stratagem and ruse. This also augurs the absolute necessity for grater legal aid funding and perhaps a representative cadre of lawyers preferably grouped in a set of chambers dedicated to representing in such cases at a tolerable and not extortionate price.

In sum it is surely time if not for a Greek or Portugal style democratic revolution then at the very least for a more socially just social democratic societyIn this respect although we are in a state of electoral flux militant socialist values will, in my view, if endorsed come up against the vested interest of the Eurocracy and will as Mr. Tsipras found out to his cost be stillborn and ineffective in accomplishing their goals.

Surely what is really needed thus is the return of social democratic interventionism or the master John Maynard Keynes. It is also perhaps necessary to hope for some inspired leadership in the national interest by one of the national parties or better several that Roosevelt showed during the American depression. The word depression is not lightly used for that is what it is not austerity not cutbacks but a full-scale depression with the entire attendant effects on human suffering that that produces.

So what can be done?

First, as argued above we need state regulation and control of and/or independent scrutiny of banks. In this respect I am decidedly in favor either by way of a new direct democracy initiative or a state led referendum under Article 46 of the absolute necessity to establish a constitutional amendment to establish a right to housing.

In this respect the economic and Social Committee of The UN has indicated in General Comment 4 that the right to housing is adequate, affordable, habitable, accessible, culturally adequate and that there is an obligation to have a defined housing plan. With definable targets to be accomplished.

In domestic constitutional terms in India the Right to Housing has been established as an emanation of the right to life and established as a basic survival right intrinsic to life and a quality of life.

Also in Canada a right to housing is negatively accepted where even informal settlements exist they cannot be taken away from you under Clause 7 of the Canadian Charter, which protects the right to life, and security of the person.

Both within the structure of the African Charter and the Inter American system the right to housing has been established as it has been in various domestic south American and African jurisdictions.In this respect the most prominent recent constitution on world terms The South African constitution has such a right in Article 26. South Africa  and in Section 28 the right of a children to shelter.

What that right initially entails is the establishment of a right to housing subject to progressive realization and reasonable allocation of resources. The Constitution also specifies an immediately enforceable specific minimum right against forced or arbitrary evictions. The South African constitutional court have interpreted this later provision in a number of cases particularly Joe Slova (Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (CCT 22/08) [2009] ZACC 16; 2009 (9) BCLR 847 (CC) ; 2010 (3) SA 454 (CC)) that such a right entails:

1: Meaningful consultation prior to eviction.

2: Alternative relocation if eviction proceeds.

3: No eviction to proceed unless the land is being put to productive use.

I recommend either legislatively or constitutionally the immediate implementation of same with one further embellishment that an arbitrator be appointed to determine on the facts of a particular case whether the amount that a consumer can pay is sufficient in the circumstances. That arbitrator should also be able to probe the banks or the vulture funds as to how much they could practically gain if they sold the property on the open market or sought to bundle it as in the terrifying previous example involving Danke Bank.

The arbitrator would of course reject spurious defenses involving colossal amount of borrowings but it would in effect achieve a rec-calibration of the system and also establish some equality of arms in the process, which is badly needed.

Finally, there is no question in my view that a government has an ethical obligation to provide someone evicted with an abode however humble even a modular home and not the ludicrous episodic nature of existence in temporary hotel structures.

A right to housing does not lead to a right to a home in Killney but to some sort of shelter so intrinsic to the most important of all constitutional rights the right to dignity.

Without adequate shelter no one can live a dignified existence.

Further, the housing and eviction crisis is corroding the very fabric of our society with attendant problems for public order and the mental and physical well being of our citizens.

The electorate has comprehensively rejected Neo liberalism if you look at the totality of the returns. Unfortunately, the ruling power broking elite has bought the mumbo jumbo of unregulated markets and trickle down wholesale and pander to the cosy club of lawyers, bankers, civil servants and businessmen who run this country in an oligarchical shadowy netherworld fashion.

In the present climate extreme left wing rejectionism will not be able, in my view, to provide an adequate negotiated settlement but social democracy could.

We need such a society a fairer, more substantively just Rawlsean society committed to a measure of egalitarianism and redistribution of wealth and resources. Resources we have a plenty if we taxed the right appropriately and not mugged the poor for that is what neo-liberalism is legalized mugging and thuggery.

We need the return of Mr. Rawles and for that matter Mr. Keynes.

Mr. Martin are you listening?



David Langwallner.

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