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 ministers.  Currently, when the legality of a governmental act is examined by a court, inter alia, judges will apply the reasonability test.  If the proposed bill materializes to legislation, this test may not apply to the government.

While the government describes the proposed amendments as a long due “reform” of the judiciary, opponents describe them as a “ruin” and the end of democracy.  Titles and labels aside, the governmental amendments will immensely weaken the judiciary and strengthen the executive.  This has a major significance in Israel, since unlike the USA and the UK, which both have two legislating bodies (the Senate/Congress and the House of Commons/the House of Lords), Israel lacks an independent Legislator.  While healthy democracies have three constitutional branches, the Executive, Legislature and Judiciary, in essence, the “reform” will amount to one unchecked ruling branch - the Executive.  A body that enacts its laws without proper review, appoints judges and limits their powers.

So will this affect companies that deal with advertising and marketing in Israel? I believe it will, since companies’ trust in the Israeli judiciary will diminish.  Moreover, the government will be able to amend laws as it sees fit.  Hence, a company entering the Israeli market due to existing laws and regulations, may not be certain that such laws will not change. 

Is all lost? I believe not.  The President of Israel, Yitzchak Herzog is currently holding negotiations in an attempt to “soften” the amendments proposed by the government.  Additionally, Israelis are taking part in massive demonstrations against the “reform”.  There are signs that the government is realizing that its proposed reform is too extreme.  In the meantime, when entering the Israeli market, I recommend advertisers and marketers insert their choice of laws and courts within their written agreements vis a vis their customers.  Courts and laws outside of Israel.