On Narrative and the Constitution: How to Dismantle the Override Clause?

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Few topics arouse as much passion in Israeli political and academic discourse as the proposal to adopt a general override clause, which would authorize the Knesset to declare legislation valid even if it contradicts Basic Laws. The adoption of such a clause—extending beyond the existing override provision in Basic Law: Freedom of Occupation—is seen by all sides as a “battle for the soul of the state.”

On one side are those who support the adoption of an override clause, in order to “restore” the Knesset’s power to have the “final word” and to override Supreme Court rulings that strike down legislation for violating Basic Laws. In their view, the override mechanism would enhance democratic values by creating a better balance between the powers of the unelected judiciary and those of the popularly elected legislature—within the framework of a constitutional dialogue about the validity of legislation and its consistency with constitutional norms.

On the other side are those who see the adoption of such a clause as the ultimate expression of democratic erosion. In their eyes, the override clause represents a counter-revolution to the constitutional revolution of the mid-1990s, as crystallized in the landmark Bank Mizrahi decision.

The depth and intensity of this debate has not subsided. In this essay, I focus on two central questions:

• First, is the override clause truly foreign to the Israeli constitutional tradition, and would its adoption amount to a counter-revolution aimed at undoing the gains of the constitutional revolution?

• Second, are there meaningful limitations that could be imposed on the override clause to mitigate the potential damage it could inflict on the constitutional framework?

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A Journey Through the Roots of the Override

Over the years, I have frequently returned to the question of the override clause in my scholarly work. I have found the journey to understand the place of override mechanisms—both in Israeli and comparative constitutional history—to be deeply illuminating. That journey taught me a great deal about the costs societies incur when they build selective narratives about the historical evolution of their legal systems.

The starting point for my inquiry was the widely held post-Bank Mizrahi assumption that Israel’s override clause was a Canadian import, and that it was limited in relevance to Basic Law: Freedom of Occupation. Justice Mishael Cheshin’s dissenting opinion in Bank Mizrahi was typically viewed narrowly—as a minority position denying that Israel has a constitution. Many commentators asserted that Cheshin later abandoned this view and aligned himself with President Barak’s position that the Knesset acts as a constituent authority.

First Realization: The Knesset Responded to Bergman and Its Progeny Using Override Logic

Two realizations marked a turning point in my thinking. The first was that the override is not a foreign transplant into Israeli law. In fact, in many respects, Israel preceded Canada in developing and using override mechanisms. The concept of override traces back to the common law requirement that legislation infringing upon human rights must contain an explicit statement of intent. Absent such an express declaration—indicating that the legislature was aware it was authorizing rights-infringing executive action—courts would interpret statutes in a manner that aligns with human rights protections wherever possible.

The Pre-Constitutional Revolution Legal Order: Israel’s Early Override Practice

This was the constitutional reality in Israel before the so-called constitutional revolution. At that time, Israel was a constitutional anomaly in comparative legal terms. While formally adhering to parliamentary sovereignty, the Supreme Court nevertheless struck down legislation on the basis of Section 4 of Basic Law: The Knesset. This anomaly persisted because when the Court invalidated legislation, the legislature typically did not amend the offending statute—it simply overrode the judicial ruling.

The Knesset repeatedly enacted what were known as “validation laws”, declaring that, “for the avoidance of doubt,” a list of statutes—potentially in conflict with Section 4—was deemed “valid for all intents and purposes from the date of their original enactment.” These were, in effect, broad override laws, applied retroactively, by way of incorporation by reference—where the override law itself was passed with the required 61-MK majority, rather than the laws being validated.

On occasion, these laws even nullified the consequences of the Court’s rulings with respect to the litigants themselves. Repeated petitions challenging the validity of these laws were dismissed by the Court, which during this period appeared to cooperate with the legislature and contributed to a kind of trivialization of judicial review. The legislature paid lip service to judicial rulings, and the Court in turn recognized as valid laws that effectively circumvented its own jurisprudence.

The last notable case involving this practice was Blum, decided after the 1992 Basic Laws were enacted. In that decision, then–Deputy President Barak endorsed this technique of legislative override. Not coincidentally, President Landau—the author of the Bergman ruling, in which the Court first instructed the government not to implement a statute—later asserted that Bergman had no revolutionary implications, and could not serve as a foundation for a constitutional transformation.

Second Realization: Justice Cheshin’s Position in Bank Mizrahi Was Not "Outlandish"

My second realization was that Justice Cheshin’s dissenting opinion in Bank Mizrahi—initially appearing “outlandish”—is in fact remarkably coherent when considered from theoretical, historical, descriptive, and comparative perspectives. I came to understand that Justice Cheshin did not abandon his position after Bank Mizrahi because he had a well-developed theory. His approach explained not only why the Basic Laws do not constitute a constitution (the negative claim), but also why the Court still possesses judicial review powers in the absence of a constitution (the positive claim).

Cheshin could, and did, join his colleagues in subsequent rulings invalidating legislation because the specific cases did not directly implicate the deeper disagreement he had expressed in Bank Mizrahi. For instance, in Bank Mizrahi, he laid the theoretical groundwork for the existence of an implicit judicial override clause in all Basic Laws. In his view, if the Knesset were to explicitly declare that “notwithstanding the provisions of Basic Law: Human Dignity and Liberty, this law is valid,” such a law would survive judicial scrutiny. According to this theory, the Knesset does not need to adopt an explicit override clause in Basic Law: Human Dignity and Liberty in order to assert its authority to override it. However, no such case has ever come before the Court.

1. Theoretical Framework: Cheshin’s “Form and Manner” Approach

Justice Cheshin grounded his view in the British “form and manner” doctrine, under which the legislature remains sovereign when legislating for the public at large, but may impose procedural constraints on itself that determine what qualifies as “law.” If the legislature fails to adhere to those procedural constraints, the courts are authorized to invalidate the resulting enactment.

Cheshin’s difficulty, however, lay in the descriptive domain: his theory did not account for the actual legal developments in Israel. The core of the constitutional revolution involved the invalidity of legislation that failed to meet the substantive requirement of proportionality under Basic Law: Human Dignity and Liberty. A theory grounded in procedural violations could not easily explain a revolution based on substantive constitutional content.

But Cheshin had a simple answer: he reclassified substantive requirements as procedural options. In his view, a proportionality requirement gives the legislature a choice: either comply with proportionality (substantive compliance) or expressly override the Basic Law (procedural compliance). This framing enabled him to give meaningful force to the proportionality requirement while remaining true to his belief that the legislature is sovereignwhen legislating for others. To preserve the force of the Limitation Clause in Basic Law: Human Dignity and Liberty, Cheshin read into it the existence of an implicit override clause.

2. Historical Context

I was surprised to discover that, despite its initial appearance as an awkward workaround, Cheshin’s approach had significant historical support in the Israeli context. It was the dominant position in legal scholarship during the period between the enactment of the 1992 Basic Laws and the Bank Mizrahi ruling. At the time, political actors acknowledged judicial review only when a law violated entrenched provisions, such as Section 4 of Basic Law: The Knesset. There was widespread confusion about the constitutional status of Basic Law: Human Dignity and Liberty, especially after its entrenchment provision failed by a single vote, when MK Charlie Biton changed his position during the second reading.

The prevailing view at the time was that a statute infringing upon Basic Law: Human Dignity and Liberty had to either comply with proportionality or explicitly override it. Even President Barak considered interpreting the Basic Law in this manner in his early writings. In fact, the Bergman line of cases essentially gave the legislature a choice: adhere to the requirement of equal suffrage under Section 4 or override it with a statute enacted by 61 MKs.

3. Descriptive Explanatory Power in Israel’s Current Constitutional Landscape

Finally, I came to realize that failing to acknowledge this historical practice of override leads the Supreme Court to inadvertently validate Cheshin’s theory over time as an effective account of Israel’s constitutional development. In my view, Bank Mizrahi unanimously affirmed the Court’s power of judicial review over primary legislation, but did not settle on a single explanatory theory for this authority. There was no majority for either President Shamgar’s self-entrenchment theory or President Barak’s dual-capacity theory. The underlying jurisprudential disagreement in Bank Mizrahi has never been re-litigated or definitively resolved.

What is perhaps most surprising is that Justice Cheshin’s theory has descriptive power that continues to explain contemporary Supreme Court jurisprudence across a range of cases. One example among many: the Court currently grapples with whether an infringement of Section 4 of Basic Law: The Knesset should be evaluated through a proportionality-based judicial limitation clause or through the requirement of a legislative override by special majority. The very notion that proportionality and override are alternative mechanisms reflects Justice Cheshin’s approach in Bank Mizrahi.

4. Comparative Framework: Israel and the Commonwealth Model of Constitutionalism

Finally, I found that Justice Cheshin’s approach aligns with what has been termed “The Commonwealth Model of Constitutionalism.” I have argued that Israel represents the "missing case" in comparative scholarship on this model, despite not being a formal member of the British Commonwealth. This model is prominently exemplified by Canada, the United Kingdom, and New Zealand.

Canada is well-known for its override clause, which allows Parliament to deviate from the proportionality requirements of the Charter of Rights and Freedoms. Canada thus adopts a model similar to Cheshin’s, where override and proportionality function as legislative alternatives.

The UK’s Human Rights Act of 1998 provides courts with the authority to issue declarations of incompatibilitybetween statutes and the European Convention on Human Rights, without judicial power to strike down the law. This effectively allows courts to signal that Parliament has overridden rights protections. The choice remains with the legislature: comply with substantive rights protections, or allow the court to publicly declare that it has not.

New Zealand has taken a similar path. In Taylor, the courts recognized the power to declare incompatibility between legislation and the New Zealand Bill of Rights Act, while similarly lacking authority to invalidate the law.

Justice Cheshin’s framework thus positions Israel—like other Commonwealth states—as having adopted an intermediate model of judicial review, one that balances between constitutional supremacy and parliamentary sovereignty. Under this model, the legislature must either comply with proportionality or override it, assuming public responsibility for its actions. Public visibility is essential, especially given one of the main critiques of the Weimar Constitution: that it allowed deviations by legislative act, often away from the public eye

A Normatively and Historically Rooted Mechanism

This theoretical, historical, and comparative journey leads to a clear conclusion: override mechanisms are not foreign to the Israeli legal system. On the contrary, they are deeply embedded in its historical and jurisprudential foundations. Should a general override clause be formally adopted, there would be no basis to declare it an unconstitutional constitutional amendment.

Are We Powerless? Limiting the Destructive Potential of the Override Clause

I do not support the formal adoption of a general override clause. It is one thing to accept that there may be an implied power to override constitutional provisions, as in Justice Cheshin’s model. It is quite another to enshrine this power explicitly in Basic Law. I fear that once formally codified, the Knesset will be far more likely to use it—and public resistance will be muted, given that Basic Laws do not reflect popular consent, but rather the support of a simple majority in the legislature.

Yet, are we entirely powerless to confront the override’s destructive potential?

In my recent contribution to the Grunis Volume, I developed a framework identifying a set of inherent constraints on the override mechanism—independent of how it is drafted by the Knesset. The starting point is to characterize the override as a tool for infringing constitutional norms via ordinary legislation, not as a mechanism for amending the constitution. Where the content of the override law constitutes a constitutional amendment—due to the breadth, permanence, or normative shift it entails—it cannot be passed via override and must instead proceed through formal constitutional amendment. The Court would be empowered to invalidate such an improper override.

Six Inherent Constraints on Legislative Override

Drawing on the nature of override as a limited infringement tool, I propose the following inherent limitations on legislative override power:

1. The override must be narrow in scope:Broad or sweeping overrides—such as those used historically in both Israel and Canada, where a list of statutes is simultaneously validated—amount to constitutional amendment by virtue of the magnitude of the deviation. Such legislation cannot be justified as a legitimate override.

2. The override must constitute a “law” in the substantive sense:As President Beinisch held in The National Census Case, legislation infringing upon rights must satisfy all the essential attributes of valid legal norms: publicity, accessibility, generality, clarity, and non-arbitrariness.

3. The override must contain an explicit declaration:A law that is temporary in nature, and contains no express statement of its conflict with Basic Law provisions, cannot qualify as a valid override. Temporariness is often used to avoid scrutiny, but fails to meet the transparency and accountability requirements that override demands.

4. The override cannot operate retroactively:My view diverges from prior Supreme Court precedents. Retroactive application undermines the duty of both Parliament and the judiciary to uphold the supremacy of the Basic Laws.

5. The override cannot nullify the judicial ruling as res judicata with respect to the parties:If the legislature is aware that a law fails to meet proportionality requirements, it must declare its override in advance, taking political responsibility. Waiting for a judgment and then legislating retroactively violates the principle of judicial independence and the binding effect of judicial decisions.

6. There are limits to how often override can be used on the same issue:When overrides are repeatedly renewed or rendered permanent, they cease to function as overrides and instead become de facto constitutional amendments. This misuse transforms a temporary exception into a lasting normative shift.

7. Override Cannot Be Used Against the Fundamental Principles of the Constitution

   An override cannot be used to circumvent the foundational principles of the Israeli constitution. Any such attempt would, by its nature, amount to a constitutional amendment, due to the profound normative conflict between the infringing law and the core values of the state. A statute seeking to override constitutional fundamentals cannot withstand constitutional scrutiny.

   My position diverges from the remedial path proposed by President Barak in Mitral for addressing override laws that conflict with foundational constitutional principles.[29] In my view, such laws are invalid not because they violate proportionality or the formal override rules, but because they attempt to redefine the constitutional identity of the state, a power reserved for formal amendment procedures.

   
   

Conclusion: Not a Magic Wand

When the inherent limitations on the override mechanism are properly acknowledged and understood, much of the political fervor surrounding the override clause may be mitigated. The override is not a magic wand permitting broad and brazen violations of human rights or foundational democratic norms. Once this is recognized—even by its most enthusiastic supporters—the appetite for sweeping change may well diminish.

The story of the override in the Israeli context remains a compelling one because it illuminates how constitutional narratives are constructed—often in ways that are detached from historical reality. In the absence of a nuanced appreciation for this history, political actors—including all three branches of government—may unwittingly strengthen or weaken one theoretical model or another, ultimately shaping the dominant understanding of how Israel's constitutional system evolved.[30] This story, however, is far from over.

Suggested citation:

On Narrative and the Constitution: How to Dismantle the Override Clause?, ICON-S-IL Blog, May 10, 2021 [Hebrew].