Arthur Chaskalson, 81; led Constitutional Court in South Africa

Justice Chaskalson was an opponent of apartheid. His court abolished the death penalty and allowed same-sex marriage.
Justice Chaskalson was an opponent of apartheid. His court abolished the death penalty and allowed same-sex marriage.

NEW YORK — “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. 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 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 Dec. 1 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 who saved Mandela and other antiapartheid activists from the death penalty at the infamous Rivonia trial in 1963-64. 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 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.

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‘‘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 US 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 Marshall had directed.

Justice Chaskalson 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.

After 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.

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 not an Afrikaner, a member of South Africa’s Dutch-descended white ruling group, he also was Jewish. That status, he said, helped him to identify with the powerless.


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.

‘For the first time, the constitution trumps Parliament.’

Justice Chaskalson leaves his wife, Lorraine; his sons, Matthew and Jerome; and several grandchildren.