Override Clause (Israel)

Israel has no single written constitution. Instead, the Knesset has enacted Basic Laws intended to serve as chapters of a future constitution.[1] Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty, enacted in 1992, protect fundamental rights. In the 1995 United Mizrahi Bank decision, the Supreme Court articulated the constitutional status of Basic Laws and its authority to review ordinary legislation; later decisions applied that authority to invalidate conflicting provisions.[2]

A 2023 Library of Congress report stated that the Court had invalidated 22 laws or legislative provisions, mostly on grounds involving human dignity and liberty, freedom of occupation, or equality. It also noted that no Basic Law governed the legislative process itself.[3] In the absence of specific entrenchment or procedural restrictions, Basic Laws may generally be enacted or amended by a simple Knesset majority, although some provisions require an absolute majority.[3][4] This flexible structure forms the backdrop to both the existing override clause and proposals for a broader one.

Israel's existing override mechanism appears in section 8 of Basic Law: Freedom of Occupation, titled "The validity of a divergent law." A provision infringing freedom of occupation may remain valid despite failing section 4 if the law receives the support of a majority of all Knesset members—at least 61—and expressly states that it is valid notwithstanding the Basic Law. Its validity expires after four years unless the law specifies an earlier date.[5]

The Supreme Court has explained that an override temporarily gives an ordinary law constitutional validity without amending the Basic Law or reducing the constitutional status of freedom of occupation. The required majority and express notwithstanding statement are cumulative conditions; without both, an infringing law that also fails the limitation clause is unconstitutional.[2]

The limitation and override clauses provide distinct routes to validity. Section 4 permits proportionate restrictions that accord with Israel's values and pursue a proper purpose. Section 8 permits a law that fails those substantive requirements to operate temporarily if its procedural conditions are satisfied.[6][2]

The mechanism was added in connection with the Mitral litigation and was influenced by Canada's notwithstanding clause, although the Supreme Court emphasized differences between the two systems.[7][2] The amendment led to 1994 legislation restricting meat imports; INSS identifies the Meat and Meat Products Law, 5754-1994, as the provision's only use.[7][8]

Basic Law: Human Dignity and Liberty has no equivalent override clause. The Supreme Court consequently described its protected rights as receiving stronger protection against ordinary legislation. That Basic Law also lacks the entrenchment provision under which Basic Law: Freedom of Occupation may be changed only by another Basic Law supported by a majority of Knesset members.[2][9]

Broader override proposals have circulated for decades, often in connection with a proposed Basic Law: Legislation that would regulate the enactment of Basic Laws and constitutional judicial review.[8] A prominent attempt was made in 2013 by then-Knesset member Ayelet Shaked, whose proposal would have allowed 61 members to reenact a law invalidated by the High Court; it was not enacted.[10]

Other proposals considered thresholds of 61, 65, 71, and 81 members, while a separate formulation required 80 members to ensure broad political agreement.[11] A 2018 account also described a bill under debate that contemplated a 61-vote override but did not provide its complete text or report its enactment.[1]

Justice Minister Yariv Levin introduced the government's judicial-reform package on January 11, 2023. It sought to restrict review of legislation and executive action through an override mechanism, changes to judicial selection, limits on the reasonableness doctrine, and changes to the status of government legal advisers.[3][12]

A central proposal would have allowed 61 of the Knesset's 120 members—the number identified in the Library of Congress report as the minimum coalition majority—to reenact legislation despite a Supreme Court ruling that it was incompatible with a Basic Law.[3] Another formulation would have validated legislation expressly declared to be "valid notwithstanding the provisions of the Basic Laws," extending beyond the narrow scope of Basic Law: Freedom of Occupation.[3]

A January 30 committee proposal would have barred constitutional review of any law containing an override statement. The protection would have lasted until one year after the end of the enacting Knesset's term unless extended by the following Knesset. It also required the full Supreme Court to act unanimously before invalidating an unprotected law.[13]

The March 2023 bill reportedly passed its first reading by 61–52.[14] It would have allowed 61 members to add an override provision during the legislative process, with protection lasting through the enacting Knesset's term and one year into the next and subject to later renewal.[14] Related formulations required 12 of 15 Supreme Court justices to invalidate an unprotected law, a threshold the American Jewish Committee said would make judicial intervention nearly impossible.[15][14] Two further readings were required for enactment.[14]

Prime Minister Benjamin Netanyahu announced a temporary pause in the broader reform legislation on March 27, 2023, amid compromise discussions and major civil disobedience. He said he wanted to "prevent civil war."[3][16] The override bill was frozen, and Netanyahu later indicated that legislation would proceed without it. President Isaac Herzog's March compromise outline likewise omitted an override clause.[17]

Some coalition members considered 61 votes too permissive, and higher thresholds were discussed without agreement.[18] The government continued to support a different proposal requiring all 15 Supreme Court justices to hear constitutional challenges and 12 to agree before invalidating a law.[18]

The measure enacted on July 24, 2023, concerned the reasonableness doctrine rather than an override power. It amended Basic Law: The Judiciary to restrict review of decisions by the government, prime minister, and ministers on reasonableness grounds.[18][16] The verified sources do not show enactment of the broad override clause during the 2023 process.

Supporters argued that an override clause was needed to correct what they regarded as judicial activism. Researchers associated with the Kohelet Policy Forum contended that the Supreme Court lacked adequate checks and had interfered with policy choices belonging to elected officials.[3] The claim that Israeli courts invalidated legislation more frequently than courts in comparable democracies was disputed by an Israel Democracy Institute review cited in the same report.[3]

A broader argument held that the judiciary had acquired authority at the expense of elected institutions after the 1992 Basic Laws. Supporters described stricter procedures for invalidating legislation and restoration of the Knesset's "last word" as a democratic rebalancing. Justice Minister Levin and committee chairman Simcha Rothman advanced proposals that differed in detail and changed during the legislative process.[19]

Supporters also cited override mechanisms in other constitutional systems and argued that Israel's Supreme Court had developed judicial review without sufficiently explicit legislative authorization.[1]

Attorney General Gali Baharav-Miara argued that the combined reform package would give the government "absolute power by removing checks and balances" and could effectively eliminate constitutional judicial review.[20] She maintained that override clauses are unusual and, where present, operate within broader constitutional systems containing additional restraints. Because Israel had not completed a constitution or comprehensive bill of rights, she argued that the necessary constitutional foundation was absent.[20]

The American Jewish Committee stated that the proposed structure would make High Court intervention in Knesset legislation nearly impossible.[15] INSS described the combination of a 61-member coalition majority, no required opposition participation, and no specified duration limit as a "particularly thin" form of constitutional restraint.[21] It contrasted that version with an earlier 80-member proposal intended to require broad consensus.[11]

Opponents argued that Israel's lack of a single constitution and its limited structural checks made a 61-member override qualitatively different from override powers elsewhere. The proposal also generated mass protests and civil disobedience.[20][16] Reservists and other military personnel were among those who warned that the overhaul could affect democratic governance and national cohesion.[16]

The existing clause and the proposed broad override differed in scope, duration, and institutional effect. Section 8 applies only to freedom of occupation, while the 2023 proposals would have reached rights protected by Basic Law: Human Dignity and Liberty and, in some versions, other Basic Laws.[22][3]

The existing clause ordinarily expires after four years.[5] The January and March 2023 formulations instead linked protection to the enacting Knesset's term and one year of the following Knesset, with possible renewal.[13][14] Earlier versions described by INSS imposed no specified duration limit.[21]

Both the existing provision and the broad proposal used a 61-member threshold, but the existing provision is confined to one Basic Law and paired with a fixed sunset. The proposed mechanism would have extended across a much wider constitutional field without requiring opposition votes.[21] The existing clause has also had limited practical significance: INSS identifies the Meat and Meat Products Law, 5754-1994, as its sole use.[8]

Section 8 was influenced by section 33 of the Canadian Charter of Rights and Freedoms, which permits federal or provincial legislatures to declare that legislation operates notwithstanding specified Charter protections. The Supreme Court of Israel nevertheless stressed that the Israeli and Canadian mechanisms differ.[2]

The attorney general argued that override mechanisms elsewhere form part of more comprehensive constitutional arrangements containing checks that Israel lacks.[20] Israel's Basic Laws may generally be amended by ordinary parliamentary majorities unless a particular entrenchment requirement applies, making the institutional consequences of an override threshold especially significant.[3][4]

Proposals requiring a full judicial quorum and either unanimous agreement or 12 of 15 justices were presented alongside the override clause.[13][18] Opponents argued that such thresholds would themselves make invalidation exceptionally difficult.[15][18]

The override debate reflects unresolved questions about the relationship between the elected Knesset and the judiciary, the status of the Basic Laws, and the legitimacy and scope of constitutional judicial review.

The Supreme Court's 1995 United Mizrahi Bank judgment treated Basic Laws enacted through the Knesset's constituent authority as constitutionally superior to ordinary legislation.[2] Supporters of this development regarded it as a constitutional revolution that strengthened rights protection; critics described it as judicial self-empowerment unsupported by a clear democratic mandate.[1]

The debate also concerns whether Basic Laws can provide durable constitutional constraints while many remain amendable by ordinary majorities. One constitutional argument calls for entrenched rules requiring broad consensus so that the powers and checks of the three branches cannot be readily altered by a governing coalition.[4]

The existing override's single recorded use suggests that the principal controversy concerns a generalized power extending beyond freedom of occupation. The broad 2023 bill was frozen rather than enacted during the legislative process covered by the sources, while the government advanced a narrower restriction concerning reasonableness review.[8][17]

The principal dispute was whether a broad override would restore democratic authority to elected institutions or deprive constitutional rights of an effective judicial safeguard.[3][20] Supporters and opponents also disagreed over comparative claims about judicial activism and whether 61 votes represented legitimate majority rule or an insufficient constitutional restraint.[21][3]

Debate was complicated by the term's use for two different mechanisms: the narrow provision already contained in Basic Law: Freedom of Occupation and the much broader proposals considered in 2023.[8] The latter were not enacted during the legislative process established by the cited sources.