Australian high court judge Michael Kirby will give the annual human rights lecture in the Law Society tonight, speaking on the relevance of the 100th anniversary of the Dreyfus affair.
Captain Dreyfus was a Jewish officer in the French army who was wrongly accused and convicted of espionage. It took 12 years, for five of which he was imprisoned on Devil's Island, for the French government to admit a miscarriage of justice. It did so 100 years ago this year. The affair convulsed French society, revealing the extent of racial prejudice among its ruling elite, and has been a touchstone for miscarriages of justice since.
There are many lessons from this affair, Judge Kirby told The Irish Times yesterday. "First, all judges and lawyers must keep their minds open to the possibility of miscarriages of justice. There is a risk that lawyers think in terms of formulae, that if things are correctly done then what is done is correct. We must keep our minds open to the possibility that it is not. The Irish cases in the UK [in the 1970s] show that even an exquisite system of justice can get things wrong.
"Second, it reveals the importance of open trials. Dreyfus was tried in secret. Third, it shows the importance of minimising the use of special tribunals and the importance of open courts. This is relevant to detainees in Guantánamo Bay today. Fourth, it shows the need to apologise when we get things wrong. President Mitterrand commissioned a statue of Dreyfus for the École Militaire in Paris, and they refused to accept it. In 1998, President Chirac apologised for what happened fully and openly."
Judge Kirby has a long record of supporting human rights and minorities within the Australian justice system. As a man who is openly gay, he has referred to his experience of abuse and wrongful accusations. He stressed the need to be vigilant in defence of human rights.
"In Australia, a new government was elected in the 1950s with a mandate to ban the Communist Party. This was over-turned by the high court (the Australian supreme court) as unconstitutional, on the basis that while actions could be made illegal, opinion or belief could not. This went to referendum, and the Australian people refused to adopt a ban. In 1951, communists were perceived as terrorists.
"Anti-social acts cannot be ignored. But we must keep a sense of proportion and of history. History teaches us that the measures that are most successful are those that are respectful of the fundamental principles of society."
His judicial record has often been as a dissenter, with 40 per cent of his judgments dissenting from the high court majority. When it comes to constitutional matters, this rises to 50 per cent.
However, he told The Irish Times he expects most of his viewpoints to come to fruition in time. "The good thing about our tradition is that it obliges us to speak our honest opinion. There is no dissent in the European tradition. Many questions don't have easy immediate answers."
His father's family came from Co Limerick in the 1860s, while his mother's family, the Knowles, came from Co Antrim. He will visit them this weekend.