Israel judicial reforms: Who are the Black Robes, what is their goal? -interview

A group of lawyers is making their case for justice, not in the courtroom, but in the streets. The Black Robes Protest group is one of the leading movements in the campaign against the judicial reform plan proposed by Justice Minister Yariv Levin at the beginning of January. What sets them apart from other activist groups is they are not traditional activists, but lawyers with private firms.

Zvika Bar-Nathan is vice chairman, partner in the Commercial and International Litigation Department at Goldfarb Seligman. Nadav Weisman is partner in the litigation department at Meitar Law offices. They are some of the leaders of The Black Robes, which was founded in 2019 to protest the first proposals of an Override Clause, which would allow the Knesset to overturn High Court of Justice rulings. Now revived to protest Levin’s reforms, they say they seek to end the unilateral implementation of dramatic changes to the system.

“We believe as lawyers, because of our work in the field, we have a responsibility to protect the rule of law and democracy – a responsibility shared with everyone in the public,” Bar-Nathan told The Jerusalem Post on Monday.

While judges and some civil servants were restricted from speaking, the lawyers of the Black Robes group could advocate on their behalf. The group emphasized, however, that they had not spoken to any judges as part of their activist endeavors so as to not degrade the independent and apolitical nature of their offices. Further, as lawyers, they stand before judges all the time and wouldn’t want to create a conflict of interest.

The lawyers have certainly made their voices heard, joining the chorus of protest songs and marching footsteps, as for the third week since the proposal tens of thousands of demonstrators have filled the streets in Israeli cities – first in Tel Aviv, and then beyond. The most recent protest in Tel Aviv, a coalition of organizations, saw around 100,000 marchers. On January 12, thousands of lawyers joined the Black Robes, demonstrating at the district courts of Nazareth, Haifa and Tel Aviv, as well as the High Court in Jerusalem.

Protesting Israeli judicial reform is supported by the Right and Left

While pro-reform politicians and activists have characterized these activities as the work of left-wing extremists, the Black Robes leaders were adamant that not only was their organization bipartisan but the fight against the judicial reform was supported by a broad spectrum of political movements, on both Left and Right.

The leaders noted that many figures on the Right had already come out against the reforms, such as Dan Meridor, a long-time Likud Party member and former justice minister. It was extremists, they said – naming Levin and Knesset Constitution Law and Justice Committee chairman MK Simcha Rothman, that have hijacked the institutions of power to drive forward their agenda.

Bar-Nathan rejected the Right/Left dynamic framed by some in media and politics. He said Right and Left was originally largely a matter of economic outlook, and in Israel, it is both a right- and left-wing interest to enshrine and protect democracy. The Black Robe leaders argued that Left and Right are irrelevant to a girl rejected from her seminary because she is of Mizrahi decent, an LGBTQ+ man rejected from a job because of his sexuality, or the residents of Sderot who are neglected and without bomb shelters in the face of Gazan rockets. The High Court protects these rights, the movement leaders argued.

Weisman warned that it is a problem for everyone across the political spectrum that the reforms would concentrate all power into the Knesset. The result is that anyone who came into government could wield that power against the rest of society, leaving any future minority at the mercy of the future majority.

“It is individuals that are protected by the court,” said Weisman.

While the Knesset may address the will of the majority, it was the court that protected minorities, down to the greatest minority of all, the individual.

Both sides to the debate have argued that their movement is furthering the cause of democracy, but the leaders reminded that the rule of the majority was not a proper democratic regime.

Bar-Nathan explained that in democracies, there existed a balance between authorities, the executive, legislative and judiciary. As is, in Israel the executive dominates the legislative. With an override clause, political selection of judges, lack of independent government legal advisers and other provisions of the proposed reforms, there would be no check to the control of whatever party is in power.

“In how many countries have they said [they were making the system more democratic] before they became a dictatorship? There are many examples throughout history,” Bar-Nathan noted.

What do the Black Robes want?

Comparisons to the legal regimes of other states have often been made to the individual provisions of the judicial reform, such as Canada’s own Override Clause. However, the Black Robes leaders argued that the new system would have to be seen as a whole. They said there is no Western democratic country without a constitution, unicameral parliament, integrated legislative and executive branch, and as few protections for rights – as Israel has – with all the elements that have been proposed in the reforms.

“They took all the worst ideas from different countries into one reform,” said Weisman. The current system, he said, had things that could be fixed, but overall “it’s a good system.”

What the Black Robes proposed was to develop any changes to the system in a proper process, instead of a hasty and unilateral program.

Weisman said the proper process would need to begin with a public committee, in which experts and professionals could properly give their opinion and explore the impact of a new legal regime. Weisman gave the example of experts who could examine any potential economic or diplomatic impact that could arise for the new system. This, in contrast, to the current law committee sessions in which such experts were not even given polite replies.

After a public committee, the recommendations should be reviewed by government legal advisors, and only then should discussions in the law committee begin. The current sessions were not seen as legitimate.

Lastly, the most important legal move that the robes suggested, was to develop a constitution. Israel currently only has quasi-constitutional Basic Laws.

For the Black Robes, “Protests are just the beginning,” said Bar-Nathan.

“We’re lawyers, not professional protest organizers,” Weisman explained. They would engage with and motivate retired IDF generals, captains of hi-tech industry and academics to speak out and stand up to the reforms, bringing the entire Israel system to a halt.

Indeed, president of the Israel National Academy of Sciences Prof. David Harel came out against the reforms in a speech on Monday, joining deans of law faculties in institutions such as Reichman University and Hebrew University of Jerusalem.

And of course, as lawyers they would prepare for the day that they may need to stand in front of the high court and make their case.

When asked if they thought protest and campaigning could be successful, Bar-Nathan responded that “Without optimism, engaging in such work wouldn’t be possible – but it is cautious optimism.”