Arthur Chaskalson, Chief South African Jurist, Dies at 81
By DOUGLAS MARTIN
Published: December 3, 2012
“The last time I was in court was to hear whether or not I was going to be sentenced to death,” Nelson Mandela said in 1995. Mr. Mandela,South Africa’s president, was speaking during the inauguration of Arthur Chaskalson as the first presiding judge of their country’s newly established Constitutional Court. The moment signified the new order that Mr. Mandela had for decades fought to achieve: a majority-ruled nation where minority rights were protected by a Constitution and a bill of rights.
Salvatore Di Nolfi/Keystone, via Associated Press
Justice Arthur Chaskalson in 2009. He led South Africa’s Constitutional Court as presiding judge and then as chief justice.
Justice Chaskalson, who died on Saturday in Johannesburg at 81, had helped write that Constitution and create the court that would be its safeguard. He had earlier been part of the team of defense lawyers that saved Mr. Mandela and other antiapartheid activists from the death penalty at the infamous Rivonia trial in 1963-64. Mr. Mandela, convicted of sabotage and other crimes, spent 27 years in prison before being released in 1990.
The court grew out of the ensuing four years of negotiations between Mr. Mandela’s political party, the African National Congress, and the white minority government. An important goal of both whites and blacks was setting checks and balances on Parliament. The independent Constitutional Court was a big part of the answer.
Blacks wanted an end to what had effectively been a parliamentary dictatorship, even though they would now dominate Parliament. Whites, aware of their diminished power, demanded the very protections that they had denied blacks since the imposition of the segregationist apartheid government in 1948.
“For the first time,” Justice Chaskalson said at the opening of his court, “the Constitution trumps Parliament.”
Like him, six other justices on the 11-member court were white, but all had opposed apartheid. The court’s first major decision was to abolish the death penalty.
“Everyone, including the most abominable of human beings, has a right to life, and capital punishment is therefore unconstitutional,” Justice Chaskalson wrote.
The court went on to guarantee a right to shelter and to allow same-sex marriage.
Justice Chaskalson’s path to leadership of his nation’s top constitutional court had much in common with that of Justice Thurgood Marshall of the United States Supreme Court. Justice Chaskalson founded South Africa’s first public interest law firm to fight apartheid, modeling it after the NAACP Legal Defense and Educational Fund, which Justice Marshall had directed.
While there was no constitution or bill of rights to use as weapons in the manner that Justice Marshall had battled segregation in the United States, Justice Chaskalson, as a human rights lawyer during the apartheid era, used existing South African statutes to limit a bureaucracy that had dictated where blacks could live. He and the Legal Resources Center, a nonprofit organization he helped establish, won some of South Africa’s first consumer protection cases on behalf of poor blacks, some of whom had been defrauded by bill collectors.
In 1989, he was a consultant in the drafting of a Constitution for Namibia, the country that had been administered by South Africa and that would become independent in 1990. He then helped write South Africa’s Constitution.
After Mr. Mandela was elected in 1994, he appointed Justice Chaskalson president of the new Constitutional Court. In 2001, Justice Chaskalson became the body’s chief justice.
Arthur Chaskalson was born in Johannesburg on Nov. 24, 1931, and earned bachelor of commerce and law degrees from the University of the Witwatersrand. He had a lucrative private practice until helping to start the Legal Resources Center with a staff of two in 1978. Financing came largely from three American sources: the Ford Foundation, the Carnegie Corporation of New York and the Rockefeller Brothers Fund.
He set up a fellowship program to offer opportunities to black women with law degrees. In a speech to the New York City Bar Association in 1985, he noted that he was a double outsider: not only was he was not an Afrikaner, a member of South Africa’s European-descended white ruling group; he also was Jewish. That status, he said, helped him to identify with the powerless.
“I think it is probably easier for someone who has grown up outside the Afrikaner establishment to look upon the structure which the Afrikaners have erected to gain power and protect their position far more critically than they would do themselves,” he said.
Justice Chaskalson — whose death, which news reports attributed to leukemia, was announced by President Jacob Zuma of South Africa — was president of the International Commission of Jurists from 2002 to 2008. He is survived by his wife, Lorraine; his sons, Matthew and Jerome; and several grandchildren.
Before he retired as chief justice in 2005, he laid the cornerstone for a new home for the Constitutional Court, the site of a dilapidated prison that once held South African freedom fighters.
Justice Chaskalson said the site had been chosen to send a ringing message: “Come here because here, at this site, your freedom is now protected.”
This article has been revised to reflect the following correction:
Correction: December 10, 2012
An obituary on Tuesday about Arthur Chaskalson, a South African jurist, misstated the dates of his tenure as president of the International Commission of Jurists. He held that position from 2002 to 2008, not from 2001 to 2012. The obituary also referred incorrectly to the process by which he became chief justice of South Africa’s Constitutional Court in 2001. He became chief justice when the position was transferred to that court, of which he was president, from the country’s court for nonconstitutional matters — not as the result of a merger of the two courts. And the obituary referred incompletely to the origins of Afrikaners, the ethnic group that ruled South Africa during apartheid. They are descended from Dutch, German and French settlers; they are not just “German-descended.”
Arthur Chaskalson SCOB, (24 November 1931 – 1 December 2012) was President of the Constitutional Court of South Africa (1994–2001) and Chief Justice of South Africa (2001–2005). Chaskalson was a member of the defence team in the Rivonia Trial of 1963.
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[edit]Career
Born in Johannesburg, Chaskalson graduated from the University of the Witwatersrand with a BCom (1952) and LLB Cum Laude (1954).[2]
In 1963, Chaskalson, along with Bram Fischer, Joel Joffe, Harry Schwarz, George Bizos, Vernon Berrangé and Harold Hanson, was part of the former President Nelson Mandela's defence team in the Rivonia Trial, which saw Mandela sentenced to life imprisonment.
Chaskalson left a very successful legal practice to become a human rights lawyer, helping to establish the Legal Resources Centre, a non-profit organisation modeled after the National Association for the Advancement of Colored People in the United States seeking to use the law to pursue justice and human rights around South Africa. Chaskalson served as the centre's director from November 1978 until September 1993.[2][3][4][5] In 1975 and 1983, he was leading counsel in the cases of Veli Komani and Mehlolo Tom Rikhotso which successfully challenged the legality of apartheid legislation seeking to establish influx control, and crippled government's ability to enforce influx control laws.[6]
As the first president of South Africa's new Constitutional Court in 1994, and then later Chief Justice of the same court (following a Constitutional amendment act in 2001 which changed his title), Chaskalson gained a reputation as one of South Africa's leading jurists in constitutional and human rights issues. Chaskalson was a member of the technical committee on constitutional issues appointed by the multi-party negotiating forum in May 1993, acting as a key advisor on the adoption of the Interim Constitution of South Africa in 1993, and was regarded as one of the prime movers of a changing judiciary in South Africa during his time on the bench of the Constitutional Court. The court's first major decision under Chaskalson's leadership, was the abolition of the death penalty on 6 June 1995.[7]
More recently, Chaskalson had also become prominent internationally, becoming commissioner of the International Commission of Jurists in 1995 before being selected as one of South Africa's four members on the United NationsPermanent Court of Arbitration in 1999. In 1989, he consulted on the writing of the Constitution of Namibia. He became the President of the International Commission of Jurists then from 2001 until 2012.[5]
On 31 May 2005, Chaskalson retired as Chief Justice, and was replaced by his former deputy Pius Langa. In his 2005 State of the Nation speech and shortly before Chaskalson's retirement, South African President Thabo Mbeki praised the Chief Justice as a "great son of our people" and a "giant among the architects of our democracy".[2] Mbeki paid tribute to Chaskalson for everything he had done "as a South African, a lawyer and a judge, to shepherd us towards the construction of a South Africa that truly belongs to all who live in it".
He died in Johannesburg on 1 December 2012 from leukemia and was buried in West Park Cemetery.[5]
[edit]Personal life
Chaskalson was married to Dr Lorraine Chaskalson, a poet and lecturer at the University of the Witwatersrand, with whom he had two sons and four grandchildren.[8] Chaskalson was Jewish[5] and was associated with Progressivesynagogues in Johannesburg.[9]
[edit]Honours and awards
In 2002 he was awarded the Order of the Baobab (Gold) for "exceptional service in law, constitutional jurisprudence and human rights".[10]
| Legal offices | ||
|---|---|---|
| Preceded by Ismail Mahomed | Chief Justice of South Africa 2001–2005 | Succeeded by Pius Langa |
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