by Geoff Budlender
Arthur Chaskalson, former Chief Justice of South Africa and a champion of human rights, passed away at the weekend. Geoff Budlender delivered the eulogy at his funeral this week. This is an edited version of the text, which is available in full here.
Arthur’s first career was as a practising advocate at the Johannesburg Bar. He had a stellar commercial practice — and some very uncommercial clients. The Rivonia trial is well known. Arthur was inspired by his clients. He was inspired by their passionate commitment to freedom, and by the price they were prepared to pay to achieve freedom. He developed deep and lasting personal loyalties to the people concerned.
Arthur took on important positions as a leader of the Bar. Much of the legal profession was cowed by those who held power, and was subservient to them. It was, frankly, a degrading spectacle. Much of the profession abandoned those of its members who were harassed, detained, banned or assassinated. Arthur worked to build the institution of an independent and fearless profession, which served the people and which served justice. He saw this as a foundation of the rule of law.
He returned to this theme in his last major public address, just three weeks ago, on 9 November. He spoke at the AGM of the Cape Law Society on “The rule of law: the importance of independent courts and legal professions”. He pointed out that the profession is under an obligation to serve the public interest, that it does not do so if it serves only the elite in our society, and that legal services have to be available to all who need them. And he said that an independent legal profession is now an imperative of the Constitution. He quoted the Chief Justice of New Zealand: “Effective judicial process cannot be obtained from independent judges without independent lawyers.”
Another institution to which Arthur devoted much of his life was the Legal Resources Centre. Many people were involved in building it and doing its work. None of them would deny for a moment that Arthur was its inspiration, its leader, and the key to its success. He saw the need for a durable institution committed to ensuring that those who most need it, receive the protection of the law. He built it patiently, skillfully, carefully. The result of that careful work is that the organization stands 33 years later, still committed to the work which it started in 1979. It is the same work, for the same people. Only the legal and political context have changed.
Arthur then became involved in institution-building on a grander scale: he started his constitutional work. While we were still in the throes of apartheid, he was an adviser to the Namibian Constitutional Assembly. What was to come next, of course, was his massive work in our own constitutional negotiations and the drafting of the interim Constitution. His hand is clearly visible in the text which was finally approved: his fingerprints are all over the document. You see them in the care, precision, and attention to detail; and you see them in the Constitution’s recognition that we need to go beyond a typical liberal constitution, which aims to limit the power of the State. Arthur understood that we needed a constitution which recognizes the need to empower the State to address and redress the consequences of centuries of dispossession and discrimination. We needed a constitution which would provide a framework for the democratic transformation which was yet to come. The interim Constitution, and its successor the final Constitution, are among Arthur’s most enduring memorials. And then came his masterpiece — the Constitutional Court. The first Constitutional Court consisted of a remarkable group of people. Arthur’s job was to weld them together, to lead them, and yet again to build institutional structures and procedures which would be durable. And what a success he made of it. It is not just a matter of the penetrating and profound judgments which he wrote. Perhaps even more important, Arthur understood how to build this institution, how to make it work, how to make it durable, and how to lead it.
It is an extraordinary story of achievements. Each one of them, standing on its own, was remarkable. Who in one lifetime could achieve that much? How did Arthur do all of this?
First, there was the transparent integrity in everything he did. You could trust Arthur Chaskalson. He was a person of rock-solid integrity and morality. Kate O’Regan said to me last weekend, “Whenever I am not sure, I ask myself what Arthur would say.”
Second, there was the way he engaged with people. It was a respect and concern for people, not theoretical philosophies, that lay at the heart of his life and his work. His core belief was that it is human beings that are really important in life — and therefore also in the law. He put people at the centre of everything which he did. It was by putting people at the centre, that he was effective. It was his respect for people that made him such a brilliant teacher. He wanted to hear your views; he listened to you carefully and respectfully; and he taught you — not didactically, but by example.
It was also people who caused Arthur the most pain. It caused him deep pain when we failed to live up to the promise we made each other in our Constitution, that we will build a society in which all can live in freedom with dignity. It caused him pain to see cynical betrayal of the sacrifices which were made in the struggle for democracy. Greed caused him pain, corruption caused him pain, and lies in our public life caused him pain. There was much around us at the moment that caused him pain, as he made clear in his speech to the Cape Law Society. But through that pain, he retained hope and confidence in the people of the country which he loved. He believed that we would yet put this behind us, because he believed in people.
Geoff Budlender SC is one of South Africa’s leading human rights advocates and a co-founder of the Legal Resources Centre.