Arthur Chaskalson, Chief South African Jurist, Dies at 81

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"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.

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, the court was merged with South Africa's top court for nonconstitutional matters, and 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 2001 to 2012. 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 originally appeared in The New York Times.


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