Judicial Reform In Israel, A Needed Reform Or An End To Democracy?

• Law Firm: Global Advertising Lawyers Alliance (GALA)
• Subject Matter: Government, Public Sector, Media, Telecoms, IT, Entertainment, Constitutional & Administrative Law, Human Rights, Advertising, Marketing & Branding
• Author: Mr David Wolberg (Kuperschmit, Goldstein & Co.)
• Published date: 20 March 2023

In the past several months, the Israeli government is attempting to enact legislation that will change the entire constitutional structure and division of powers in the country. The government claims the new laws will merely amount to a "reform". Its opponents claim the "reform" will amount to a "constitutional revolution". While a fascinating topic, the reader will ask, "is there any relation to marketing and advertising law?" As elaborated below, if the proposed "reform" materializes to law, if it will affect all players in the Israeli market, including advertisers and marketers.

The reform includes the following amendments:

An "Override Clause" designed to prevent judicial intervention in laws enacted by the government via its majority coalition. On rare occasions, the Israeli Supreme Court has canceled laws enacted by the government. Laws which the court conceived were unconstitutional, extremely unreasonable, often in violation of human rights and minorities. The proposed legislation will enable the Israeli legislature, the "Knesset" (parliament), to override such rulings by a majority of 61 votes. In total, there are 120 Knesset members. Thus, an "Override" vote, cancelling a Supreme Court ruling will be achieved by a very slim majority. A majority the government possesses within the Knesset.

Currently judges may cancel laws by a simple panel majority. The proposed bill will enable the Supreme Court to cancel "ordinary" laws by 12-13 majority out a 15 judge panel. Moreover, Supreme Court judges will be precluded from reviewing important laws, known as "Basic Laws". Needless to say, the government will determine what laws will be titled "Basic Laws".

The method of appointing judges will be amended in a manner which will essentially give the government complete control over the identity of future judges. At present, judges are elected by a "Judicial Election Committee", comprised of 3 judges, 2 representatives from the Israel Legal Bar and 4 politicians. The government proposes to amend the Committee's structure by replacing the two Bar members with two members chosen by the government. This will result in the government's complete control over the Judicial Election Committee.

Courts will be precluded from using the "reasonability test" when examining acts of governmental...