The Inherent Limits on the Override Power in the Israeli Constitution

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The debate over the legislature's authority to override Basic Laws or judicial rulings interpreting them is highly charged with political tensions. At stake is the fundamental question of who holds the ultimate power in protecting human rights in Israel: should it rest with the judiciary or with the Israeli legislature? The discussion often proceeds as if all aspects are open to political bargaining, from the very authority to override, to the specific design of an override clause.

This article offers a different perspective. It argues that the legislature’s override authority is consistent with Israel’s constitutional history, during which the Knesset regularly overrode Section 4 of Basic Law: The Knesset prior to the constitutional revolution, and the courts repeatedly upheld the legitimacy of this mechanism. Furthermore, this authority aligns with various instances of override that have appeared in Israel’s constitutional framework even after the enactment of Basic Laws concerning the protection of human rights.

According to Justice Cheshin in the Bank Mizrahi case, the Israeli legislature already holds the authority to override within all Basic Laws, even in the absence of an explicit override clause. Justice Cheshin was willing to interpret an implicit judicial override into Basic Law: Human Dignity and Liberty. Moreover, the judiciary played a significant role in the creation and formulation of the explicit override clause in Basic Law: Freedom of Occupation. This clause emerged from a historical period (1992–1995) in which political consensus was built around support for the peace process in exchange for maintaining the status quo on religious matters, with override serving as the operative mechanism—whether through an explicit override clause or through the infamous “Velner Agreement.”

The override mechanism thus reflects the unique character of Israel’s constitutional system. Nevertheless, there is a legitimate concern that its adoption as a general, explicit mechanism could undermine the protection of human rights in Israel. Therefore, the article proposes that the legislature’s override power be subject to inherent limitations, enforceable by the judiciary. These inherent limitations stem from the nature of override as a tool for infringing upon the constitution by ordinary legislation, rather than as a means of constitutional amendment through a formal constitutional process.

Suggested Citation:

The Inherent Limits on the Override Power in the Israeli Constitution: The Story of the Override from Section 4 of Basic Law: The Knesset through Retroactive Amendments to Supra-Constitutional Principles, Grunis Book 291, 291-330  (Aharon Barak et al. eds, 2023) [Hebrew].