2. The Common Law Override as a Curtailment of Administrative Action

Israel's founding period (1948–92) preceded the enactment of the 1992 Basic Laws addressing individual rights. During that period, the courts treated Israel's legislature as sovereign.Footnote ²² Nevertheless, the Supreme Court developed a common law interpretive constitution, by which the Court inferred in every statute an overarching objective to protect individual rights and promote the basic values of the legal system, in addition to the statute's specific subjective legislative purpose. By interpreting statutes purposively – and even against legislative intent – the Court could best protect individual rights. If the legislature wanted to authorise the administrative branches to infringe these basic rights, the Court required it to do so explicitly. Otherwise the Court would interpret the statute to align with individual rights, and any administrative action to the contrary would be abolished as ultra vires.Footnote ²³ By both adopting purposive interpretation and treating it as an exclusive interpretation theory early in the development of Israeli case law, the common law override doctrine could become a uniquely powerful tool in the hands of the Israeli courts even in comparative terms.Footnote ²⁴

This common law override doctrine is still applicable today, even after the constitutional revolution, when an administrative body attempts to infringe individual rights that are not protected by the Basic Laws and thus are not treated as of a constitutional nature. Their infringement nonetheless requires an explicit grant of authority to the administrative branches.Footnote ²⁵ It should be emphasised that this common law override doctrine goes beyond the requirement that administrative action be proscribed by law to meet rule of law requirements. The doctrine requires explicit proscription by law.

Fascinating examples of this common law override doctrine arose in 1949 and again in the 1980s, and involved protecting the freedom of occupation of dealers who had established connections with the administrative agency that issued licences for vehicles. These dealers would charge car owners for handling the licensing process for them. They would exploit their connections with the administration to process the licences quickly while those who did not use their services would be subject to long waiting periods before the administration handled their request. When the administration tried to halt this nepotism as inappropriate for a law-abiding administration, the Court required explicit authorisation from the legislature before infringing the freedom of occupation of those dealers.Footnote ²⁶ The first decision to consider the subject, Bezerano in 1949, did not even base the result on the ultra vires doctrine. The justices recognised the existence of the common law right of freedom of occupation as prevailing over conflicting administrative action. The Court required an explicit legislative authorisation for administrative action as a precondition for infringing that common law right.Footnote ²⁷

The power of this common law override doctrine was not to abolish statutes which conflict with individual rights but contain no override language. Rather, it was to interpret those statutes narrowly, so as not to enable the administrative branches to infringe individual rights. The actions abolished by the courts would be administrative rather than legislative. If the legislature did explicitly authorise the infringement of rights, then its will would prevail as being consistent with parliamentary sovereignty. The explicit statutory authorisation to infringe rights would become a permanent feature of the statutory landscape unless the legislature decided to amend the authorising statute. There was no sunset mechanism that limited the duration of this type of derogation of rights, nor any numerical requirement as to the extent of the majority required of the legislature (beyond a simple majority) that could authorise the infringement of rights. The doctrine enabled the Court and the public to extract a political price of shaming from the legislature, possibly deterring the legislature from interfering with individual rights altogether. The idea was to ensure that such infringements were carried out intentionally rather than by mistake, and were tailored to the specific context of the case in question. By using explicit language, the legislature could pre-empt any judicial decision on the subject.

Requiring explicit legislative authorisation as a precondition for infringing rights by the bureaucracy is a powerful tool in the hands of the judiciary. By interpreting statutes as not containing an explicit authorisation, the courts were setting the agenda and forcing the legislature to take a second look at the matter at stake. The courts were creating a new status quo of lack of administrative authority to infringe rights. Legislative inertia worked in favour of rights.

3. The Common Law Override as a Means of Overcoming Procedurally Entrenched Basic Laws

A second type of common law override arose in the context of overcoming procedurally entrenched Basic Laws. By ‘procedural entrenchment’ I mean that the Basic Laws set a special amendment process, usually requiring a specified supermajority of the legislature to amend them.Footnote ²⁸ The common law override in this context meant that instead of abiding by the content of the entrenched Basic Law, the Knesset could explicitly deviate from that content while paying a political price for such action by exposing itself as not abiding by its own substantive pre-commitment to protect rights and values. However, if the Knesset deviated from the procedurally entrenched Basic Law without using explicit override language, the Court would invalidate the breaching statute.

The lack of the first common law override, detailed above, led to abolition of administrative action alone, while the lack of this second type of override led to abolition of legislative action. The former override deals with the relationship between the legislature and the administrative branches. The latter override deals with the relationship between an entrenching legislature and a later legislature breaching its former self-entrenchment. The former may be implemented by simple majorities of the legislature; the latter must be carried out with the specified majorities required in the procedural entrenchment.

During the founding era, the Supreme Court struck down four regular statutes for breaching section 4 of Basic Law: The Knesset, which requires, inter alia, that elections be conducted in an equal manner, giving no unfair advantage to an incumbent or a large political party over new or smaller parties.Footnote ²⁹ This provision may be amended by a majority of Members of Knesset (MKs), which has been interpreted by the Court to mean an absolute majority (61 out of 120 MKs).Footnote ³⁰ For each of the four statutes that breached the norm of equal elections, the Court presented the Knesset with the option of either abiding substantively by the equality requirement or amending it by an absolute majority of MKs. The Court declared that the statutes were defunct.Footnote ³¹

Rather than amending the Basic Law, the Knesset typically re-enacted the breaching statutes, with absolute majorities, to include an override. The notwithstanding clause would typically be worded along these lines: ‘To prevent any doubt, the following list of statutes enumerated therein (or type of statutes dealing with election laws) were effective and valid from the day they were published in the official registrar’.Footnote ³² In other words, the Knesset used override language in an omnibus fashion and by way of reference to guarantee the validity of numerous statutes. It further retroactively revalidated the breaching statutes, thus overturning the judicial decision, even in its applicability to the parties in the case at hand and foreclosing any future cases.Footnote ³³

MKs were fully cognisant of the effects of this technique. Some viewed these statutes as ‘revalidation laws’ or even statutes ‘to circumvent the High Court of Justice’Footnote ³⁴ – and the Court cooperated. The Court affirmed the retroactive application, allowing the override to overcome both the Basic Law and the Court's own decision. In fact, nine days after Basic Law: Human Dignity and Liberty was enacted, Justice Barak wrote that this retroactive revalidation technique was valid.Footnote ³⁵

This unique dialogue enabled the peculiar coexistence of parliamentary sovereignty with the power of judicial review to invalidate primary legislation. The override allowed MKs to merely pay lip service to the substance of the Basic Law, since the Court did not require of the Knesset that each infringing statute should individually override the entrenched Basic Law. Thus, there was no requirement that the override be implemented intentionally, after weighing up whether the override was justified in the context of each individual statute. The retroactive nature of the override also meant that there was no requirement to consider the breach of equal elections a priori but it could rather be done ex post facto, and as a matter of formality and process alone.

Interestingly, neither the Knesset nor the Court distinguished between amendment and infringement during this period; both treated them as one and the same. In all four cases, the Knesset did not truly amend the Basic Law by setting a new norm that elections need not be equal, but rather infringed this norm in specific elections. The Court, in turn, viewed the infringement as amounting to an attempt to amend the Basic Law and declared it invalid because the Knesset lacked the necessary absolute majority support. In this game of ping-pong, the Knesset responded by overriding the Basic Law by an absolute majority.

This confusion over the differences between override and amendment resulted from the circumstances that existed during the founding of the country. At that time, neither the Knesset nor the Court treated Basic Laws as amounting to a formal Constitution. Thus, they did not contemplate the Court's power of judicial review over primary legislation to protect the constitutional status of the Basic Laws. Instead, they both respected the entrenched nature of section 4 of Basic Law: The Knesset by requiring the Knesset to abide by the absolute majority requirement as a precondition for breaching the section.

Put differently, at that time both the Knesset and the Court missed the fundamental distinction between override and amendment, which forms part of the meaning of constitutional democracy. Override, like other infringement mechanisms such as proportionality, deals with the relationship between the regular legislature and the constitution-making body; it deals with the relationship between regular law and constitutional law. Its exercise represents the legislature's will to deviate from a constitutional text in a specific context without challenging the validity of the general constitutional norm in other contexts. Amendment, like the procedural entrenchment provision of section 4 of Basic Law: The Knesset, deals with the relationship between the body authorised to amend the Constitution and the original constitution-making body. Its exercise does not intend to deviate from a constitutional norm in a specific context but rather expresses the will to rewrite the norm. It is a challenge to the very existence of the norm. Had the Court and the legislature understood this difference between amendment and override before the constitutional revolution – a distinction that is relevant only when there is a supreme Constitution to expound – they would have realised that the Knesset, in the four cases mentioned above, did not attempt to amend the Basic Law. Thus, no special majority was required for its action. The requirement for the Knesset to explicitly deviate from section 4 of Basic Law: The Knesset thus became a common law rather than a statutory requirement in those cases.

However, since the constitutional revolution that took place in the mid-1990s, the Court has raised doubts about how to infringe section 4 of Basic Law: The Knesset. To date, with regard to section 4, the Court has left unanswered the question of whether infringement is different from amendment and whether the Court should overrule previous contrary judicial decisions. It is still undecided, even after the Gutman decision of 2015,Footnote ³⁶ whether section 4 allows the legislature to infringe its requirements using an override language with an absolute majority support of MKs, or whether section 4 implicitly contains a judicial limitation clause (reading a limitation clause into the Basic Law by the judiciary) and requires the infringing legislature to fulfil its requirements of proportionality. It is also possible that section 4 requires the fulfilling of either or both requirements (override and judicial limitation clause), as the Knesset chooses.Footnote ³⁷

This confusion results from the peculiar constitutional history of section 4 of Basic Law: The Knesset – the only Basic Law over which the Court exercised judicial review over primary legislation before the constitutional revolution. At that time the Court was not acquainted with the difference between amendment and infringement, the two being interchangeable in a system of parliamentary sovereignty. With regard to all other provisions of the Basic Laws, the Court now clearly distinguishes between how to amend and how to infringe a provision of the Constitution.Footnote ³⁸

4. The Common Law Override as a Means of Overcoming Substantive Entrenchment in Basic Laws

Both academic writings and judicial decisions have proposed a third type of common law override as a means of overcoming substantive entrenchment in the Basic Laws. While procedural entrenchment made the amendment process more arduous, substantive entrenchment set substantive criteria that infringing statutes must fulfil, primarily proportionality requirements. To date, the Knesset has not used the common law override to overcome substantive entrenchment in Basic Laws. It lays dormant as a tool offered in obiter dicta in judicial decisions. Its dormancy might not be a coincidence, as it is highly questionable whether the override may be used in this way in Israel.

Under Justice Cheshin's minority opinion in United Mizrahi Bank, the Knesset retained its sovereignty even after the constitutional revolution. Justice Cheshin agreed, both in United Mizrahi Bank and in later decisions, to the exercise of judicial review over primary legislation, despite his belief that Israel lacks a formal supreme Constitution. He likens judicial review to a framework of accountability: the legislature may infringe substantive entrenchment provisions in Basic Laws as long as it does so explicitly. If there is no explicit override, the Court may declare the infringing statute invalid.Footnote ³⁹

According to Cheshin's approach, in order to adopt a formal Constitution there must be an act of the popular sovereign body – the People. Because Israel's Basic Laws were adopted with the involvement of the legislature alone, the Israeli courts may exercise judicial review only under a ‘manner and form’ theory. ‘Manner and form’ allows the courts to review only the procedures by which the legislature enacts laws. As an artificial body composed of numerous members, the rules governing legislative processes, as well as the legislature's composition and membership, cannot logically be part of sovereignty and therefore free from external review. Thus, Parliament may de facto restrict itself procedurally by setting a more arduous or a different track for legislation. Once it has done so, if Parliament later tries to violate the predefined manner and form of the procedure, the Court may exercise judicial review to strike down the enactment. Parliament may change the rules that govern its procedures, as long as it follows predefined processes.Footnote ⁴⁰ According to this theory, Parliament's sovereignty applies to the content, but not the process, of its enactments. Parliament is sovereign when it enacts norms that govern others, but may be restricted with regard to the rules governing its own conduct.

What kinds of procedural limitation are possible? The legislature might entrench statutes (regular or ‘Basic’), as long as this entrenchment does not violate the democratic principle of majority rule. In this way the legislature remains sovereign and arguably does not truly bind its successors. In other words, rather than create true entrenchment, the legislature may set attendance or quorum requirements. The legislature may, for example, require the support of an absolute majority before an enactment is changed, or mandate explicit repeal or override of statutes. Statutory repeal requiring a supermajority of members of Parliament would accordingly be interpreted to require an absolute majority. In this way, the legislature's intent to tighten the requirements for repeal would be respected without defying majority rule.Footnote ⁴¹

Arguably this theory is no longer plausible in the Israeli context (assuming it ever was). The Israeli Supreme Court has repeatedly struck down statutes based on the limitation clause found in Basic Law: Human Dignity and Liberty, which is a substantive entrenchment clause. A theory which allows only procedural, rather than content-based, limitations on the legislature – on the grounds that the latter negate the legislature's sovereignty – should not have potential explanatory force.

The answer to this challenge is that under ‘manner and form’, the legislature may also substantively entrench statutes; however, substantive entrenchment has a unique meaning in this context. Under ‘manner and form’ theory, substantive entrenchment presents the legislature with a choice: either abide by the substantive entrenchment or explicitly violate it (by explicit repeal or override), assuming public responsibility for those actions. Every substantive entrenchment would thus be translated into a procedural ‘manner and form’ requirement by preventing the legislature from unintentionally or implicitly repealing or overriding entrenched statutes. Only an intentional public act, with the legislature held publicly accountable for its actions, would validate the statute – in accordance with the theory that earlier statutes cannot bind a sovereign body.Footnote ⁴²

So far, Israel's legislature has not attempted to explicitly override Basic Law: Human Dignity and Liberty. We thus do not have a response from the Court to such a move. Israel has not yet seen the test case that would demonstrate whether this ‘manner and form’ theory is still plausible in the Israeli context. There is, however, support for such a theory in the Court's treatment of substantive entrenchment in regular statutes, as discussed below. Moreover, Israel is coming very close to testing this theory with regard to its treatment of illegal entrants seeking to be recognised as refugees – a policy that has been invalidated for the third time by the Israeli Supreme Court.

Of course, Cheshin's willingness to allow explicit override of substantive entrenchment provisions in the Basic Laws was not shared by the other justices in United Mizrahi Bank. In fact, for Barak, an explicit override of substantive entrenchment provisions would only have assisted the Court in invalidating the breaching statute. If the Knesset itself recognised that the statute is unconstitutional by including an override language, then why should the Court disagree?

However, Cheshin's theory has more support than meets the eye. When the Knesset enacted the 1992 Basic Laws, it intended to include procedural entrenchment in both. The common understanding at the time, shared by legislators, judges and academics, was that to enable judicial review over primary legislation in Israel, the Basic Law must be procedurally entrenched. This was true of section 4 of Basic Law: The Knesset, which served as the only example of the exercise of judicial review over primary legislation in Israel prior to the constitutional revolution. The draft of Basic Law: Human Dignity and Liberty thus required an absolute majority to amend the Basic Law. Alas, at the second reading in a recount of the vote, MK Charlie Biton changed his mind and voted against including procedural entrenchment in the Basic Law.Footnote ⁴³

The literature between 1992 (when the Basic Law was enacted) and 1995 (when United Mizrahi Bank was decided) ferociously discussed the meaning of the fact that Basic Law: Human Dignity and Liberty was not procedurally entrenched. Justice Barak, for example, wrote on the subject, suggesting that two routes are possible. One route is to require the Knesset to explicitly deviate from Basic Law: Human Dignity and Liberty. The lack of explicit repeal would enable the judiciary to invalidate the statute.Footnote ⁴⁴ This route is actually Justice Cheshin's route in United Mizrahi Bank. The other route, Barak wrote, was to shift from judicial review based on procedural entrenchment to judicial review that is also based on substantive entrenchment. Thus, explicit repeal would not suffice and the Knesset would have to either abide by the substantive entrenchment or amend the Basic Law.Footnote ⁴⁵ Barak ultimately opted for the second option in United Mizrahi Bank. However, between the enactment of the 1992 Basic Laws and United Mizrahi Bank, prestigious professors and justices, as well as high-ranking officials in the executive branch, expressed views similar to those of Justice CheshinFootnote ⁴⁶ – that is, that the Knesset may explicitly override Basic Law: Human Dignity and Liberty, and by doing so overcome the limitation clause with the proportionality requirement.

While Barak rejected Cheshin's approach in United Mizrahi Bank, even he suggested in the decision that when a Basic Law is silent regarding the means of infringement by regular statute, it implies that the means would be an explicit override. Without committing to a position, he acknowledged that a middle road might be necessary to distinguish the ‘silent’ Basic Law from a regular law, on the one hand, and from explicitly entrenched Basic Laws, on the other. If we allow implicit repeal of the silent Basic Law by ordinary law, then there is no difference between it and regular statutes. If we do not allow any infringement of the silent Basic Law by regular law, then we treat the silent Basic Law as more protected than an explicitly entrenched Basic Law. To resolve this dilemma, Barak suggested an explicit override as the means by which to infringe ‘silent’ Basic Laws using regular laws.Footnote ⁴⁷

One may argue, however, that these silent Basic Laws include substantive provisions that may be tantamount to a form of substantive entrenchment. Barak's opinion may thus be interpreted as suggesting an override as a means of overcoming substantive entrenchment in Basic Laws. In both judicial decisions and the literature, President Barak later opted to follow a different route to infringe silent Basic Laws by requiring the legislature to abide by a judicially imposed limitation clause. The Court has adopted this latter route in many decisions.Footnote ⁴⁸ Nonetheless, this history does show how deep the roots of the override power in Israel are, even as means of overcoming substantive entrenchment in Basic Laws.

5. The Common Law Override as a Means of Overcoming Substantive Entrenchment in Regular Statutes

So far, I have examined the common law override in the context of protecting rights, or constitutional or semi-constitutional provisions.Footnote ⁴⁹ However, the common law override arose in Israel in an additional context: that of overcoming purely regular law. Prior to the enactment of the 1992 Basic Laws, substantive entrenchment was relevant mainly to only a few regular statutes. The Woman's Equal Rights Law of 1951 provided, for example, that ‘women and men shall be equal for purposes of every legal act; any legal provision which, for purposes of any legal act, discriminates against a woman because she is a woman shall not be complied with’.Footnote ⁵⁰ Similarly, the Commodities and Services Control Law of 1957 provided that ‘whenever a provision of this statute conflicts with the provision of any other law, the provision of this statute shall prevail’.Footnote ⁵¹ In both cases, the Court has interpreted these statutes as prevailing over conflicting later statutes, unless the later conflicting statutes included explicit override language.Footnote ⁵² Substantive entrenchment thus merely reversed the regular interpretation maxim that a later statute may impliedly repeal an earlier statute.Footnote ⁵³

As the requirement for explicit repeal came from the courts, it too may be classified as a form of common law override. Further, this type of dialogue between the Court and the legislature meant that the legislature had to use explicit language in the later statute if the legislature wanted to guarantee that the Court would allow it to override the substantive entrenchment of the earlier statute.

If the Woman's Equal Rights Law may be treated as quasi-constitutional in the sense that it deals with equality, the Commodities and Services Control Law aggrandises the power of the administrative branch and violates individual rights. Its justification is purportedly based on emergency necessity, but in fact it is frequently used outside the emergency context.

In recent years, the Court has discussed the status of substantive entrenchment in regular statutes. Specifically, it has focused on the relationship between a budget law and the 1985 Budget Principles Law. Section 3a of the Budget Principles Law requires that budget statutes apply equally to similar types of institution.Footnote ⁵⁴ The Court treats this provision as a form of substantive entrenchment which requires budget statutes to conform to the norm of equality. Moreover, the entire Budget Principles Law is treated as a framework statute for regular annual budget statutes. Based on the substantive entrenchment of either the entire Budget Principles Law or solely its section 3(a), the Court may strike down a later conflicting provision of a regular budget statute.Footnote ⁵⁵ In this context, too, Justice Cheshin has suggested that budget statutes may be able to explicitly override the Budget Principles Law.Footnote ⁵⁶

One may argue that we should understand this line of decisions not as a reflection of the entrenched nature of the Budget Principles Law, but as an indication of the unique legal status of budget statutes in Israeli law. Perhaps a budget statute should be viewed as inferior to regular statutes, because its content is not truly normative, making it easier for the Court to review budgetary statutes than regular enactments.Footnote ⁵⁷

The difficulty with this explanation is that in parliamentary systems (as distinguished from presidential systems), the budget is one of the main mechanisms by which parliament may express its confidence, or lack thereof, in the executive branch.Footnote ⁵⁸ Thus, the Court's intervention in the application of the budget statute is actually more problematic than its intervention in other regular statutes. Such intervention may lead to a parliamentary crisis between the legislative and executive branches, which in turn can lead to a loss of parliamentary confidence in the government and dissolution of the government. This crisis might ultimately spur elections. The budget is the means through which the executive puts its mandate into operation.Footnote ⁵⁹ Thus, the better explanation for this line of decisions is that substantive entrenchment in a framework statute, like the Budget Principles Law, may be overcome by explicit repeal.

6. The Common Law Override as a Means of Overcoming the Non-Delegation Doctrine

Another use of the common law override is to overcome the presumption that the legislature does not intend to delegate legislative functions to the executive branch. The Supreme Court has defined Israeli democracy as one requiring, inter alia, that ‘fundamental and material decisions in the life of its citizens be passed by the body elected by the people to make these decisions. The policy of society should be formulated by the legislative body’.Footnote ⁶⁰ The Israeli Supreme Court developed the non-delegation doctrine by which certain decisions must be made by the Israeli legislature rather than by the executive branch. The Court developed criteria for identifying which decisions amount to primary arrangements and thus must be decided by the legislature. These criteria include whether the arrangements (i) have long-term effects on entire public sectors or even on society as a whole; (ii) are the subject of fierce public controversy; (iii) affect constitutional rights; and (iv) involve irreversible consequences.Footnote ⁶¹

Utilising this doctrine, the Court has struck down certain regulations and government decisions, with the explanation that they were too important to be made by the executive branch and should have been decided instead by the Knesset. For example, the Court required the legislature to formulate primary arrangements regarding the deferral of army service to the ultra-orthodox community, thereby annulling the Defence Minister's decision on the matter.Footnote ⁶² However, if a statute explicitly authorised the executive branch to formulate primary arrangements, the Court would respect that decision. Some of the justices held that, if individual rights were at stake, the authorisation required would have to be more explicit than in other contexts.Footnote ⁶³ Other justices held that the stringency of the explicitness required was a function of how primary was the arrangement at stake.Footnote ⁶⁴ Thus, the Court requires an explicit provision to enable the legislature not to comply with the norm of the non-delegation doctrine.

The Court has not used the non-delegation doctrine to strike down a statute which grants too broad a discretion to the executive branch, although this may happen in the future.Footnote ⁶⁵ Thus, instead of treating the non-delegation doctrine as a constitutional principle, its sting so far is confined to administrative law.Footnote ⁶⁶ It strengthens the legislature in its relationship with the executive by requiring the executive to obtain explicit legislative authorisation to formulate primary arrangements.

7. The Birth of the Israeli Sunset Override

A seemingly different kind of override that exists in Israeli law is the sunset override, which forms part of Basic Law: Freedom of Occupation.Footnote ⁶⁷ This override mechanism allows the regular legislature to enact a statute notwithstanding Basic Law: Freedom of Occupation, provided the statute is passed by an absolute majority support of MKs and includes explicit override language. Unless a shorter duration is stated, this statute is in effect for four years – the term of the Knesset, unless it dissolves prematurelyFootnote ⁶⁸ – and will lapse thereafter.

A few features distinguish the common law from the sunset override. First, the common law override lasts until it is amended by the legislature. In contrast, the sunset override provided in the Basic Law intends that each new legislature should consider anew whether the override is justified.Footnote ⁶⁹ Second, the possibility of using the sunset override must be explicit in the language of the Basic Law. It is not judge-made or implied, as is its common law counterpart. Third, the sunset override mechanism is a unique path for infringing Basic Law: Freedom of Occupation – and this Basic Law only.Footnote ⁷⁰ The other common law mechanisms discussed so far are more general in nature.

The often repeated provenance of the sunset override mechanism is the Canadian override. The chair of the Constitution, Law and Justice Committee, MK David Zuker, has asserted that this override was moulded in light of the Canadian ‘patent’ or ‘invention’.Footnote ⁷¹ By a majority of 67 to 9 MKs,Footnote ⁷² the Knesset replaced the original Basic Law: Freedom of Occupation, which was passed in 1992 with weak support,Footnote ⁷³ with the 1994 version to incorporate this override mechanism and to enable the prohibition against imports of non-Kosher meat into Israel.Footnote ⁷⁴ The more significant majority of 1994 is said to have remedied the lack of a substantial majority in 1992 and demonstrated that the Knesset intentionally enacted the constitutional revolution which, among other things, granted the courts the power of judicial review over primary legislation.Footnote ⁷⁵ In fact, some MKs argued in favour of this ‘redemption story’ during the passage of the Basic Law in 1994.Footnote ⁷⁶ However, the actual story of the birth of the override is more complicated. Its common law origins also form part of the tale.

The Knesset enacted the two Basic Laws governing individual rights in March 1992, three months before holding general elections, during a legislative ‘lame duck’ period which suffered from the typical legitimacy problems attendant on such transitions of power.Footnote ⁷⁷ While the Harrari Resolution orders that the Knesset's Constitution, Law and Justice Committee propose Basic Laws, the 1992 Basic Laws were initiated by private MKs – chief among them MK Amnon Rubinstein. At the time, Likud was the ruling party.Footnote ⁷⁸ In the ensuing elections, the Labour party won for the first time since its defeat in 1977. Its leader, Yitzhak Rabin, created a coalition of ‘strange bedfellows’ with Shas, a religious right-wing party, and Meretz, a left-wing liberal party. Soon thereafter, in 1993, Rabin – together with PLO leader, Yasser Arafat – adopted the Declaration of Principles on Interim Self-Government Arrangements.Footnote ⁷⁹ The Knesset endorsed the Declaration of Principles on 23 September 1993 by a majority of 61 to 50. Shas left the coalition to protest against the move and abstained in the vote on the endorsement.Footnote ⁸⁰ The government remained in power as a minority government, relying on the support of the Arab political parties that did not form part of the coalition.Footnote ⁸¹ Rabin recognised that it was critical for him to bring Shas back into the coalition in order to advance the peace process. So, where does the override clause fit into these events?

A month later, on 22 October 1993, the Israeli Supreme Court issued the famous controversial Meatrael decision, which dealt with the issue of non-Kosher meat imports into Israel.Footnote ⁸² It concerned a decision of the Rabin government of 8 September 1992 to privatise the importation of meat, which until then had been within the government's national security purview. The government did not foresee that privatisation might lead to imports of non-Kosher meat. Although consumers could buy non-Kosher meat in Israel even before the privatisation decision, many MKs feared that imports would make non-Kosher meat cheaper, thereby increasing its consumption by Jews.Footnote ⁸³ To steer clear of earlier case law that limited the administrative branch to economic considerations when licensing imports (and excluding religious considerations), the government decided to freeze its administrative decision to privatise the importation of meat and replace it with a statute. The government believed that a statute would enable it to privatise while simultaneously prohibiting imports of non-Kosher meat. Meatrael petitioned against the government's decision to freeze the privatisation of meat imports while the statute was being enacted, on the grounds that the government had acted to protect religious concerns. The High Court of Justice accepted Meatrael's claim.

Typically, scholars state that the Knesset replaced Basic Law: Freedom of Occupation by adding an override clause, to circumvent the Meatrael decision.Footnote ⁸⁴ This description portrays the override as a mechanism which enables the legislature to override the Court, but in fact the Knesset revised the Basic Law in accordance with the Court's advice in the case, as described below. The override thus emerged as a tool to override the Basic Law rather than to express disagreement with judicial interpretations of the Basic Laws.

The Meatrael Court decided that even a statute which prohibits the importation of non-Kosher meat might be invalid because it would not align with the limitation clause in Basic Law: Freedom of Occupation, 1992. The justices suggested that the Basic Law would need to be amended to include a ‘notwithstanding’ mechanism if the government wished to prohibit imports of non-Kosher meat.Footnote ⁸⁵ Thus, the Court – the justices of which, both present and former, are the most vocal opponents of the adoption of a general override clause in the Basic Laws – introduced the idea of such an override in Israel.

Requiring the combination of amendment and override to enable the prohibition of importation of non-Kosher meat resulted from a lack of understanding of the difference between amendment and infringement of the Basic Laws. Both the Court and the legislature shared this confusion. While the judiciary confused the two in Meatrael, the legislature demonstrated its confusion in the phrasing of the original draft of December 1993 of Basic Law: Freedom of Occupation (Amendment). It stated that a law must not contradict this Basic Law unless it includes an explicit override.Footnote ⁸⁶ Vice-President Aharon Barak responded to this draft in an open letter to the Chair of the Knesset's Constitution, Law and Justice Committee on 11 January 1994.Footnote ⁸⁷ He instructed the Knesset on the difference between infringement and amendment, and explained why an override should be used only as means of infringing rather than amending the Basic Law.Footnote ⁸⁸ Following his advice, the Knesset drafted a revised Basic Law: Freedom of Occupation, this time limiting the use of the override to cases of infringement of rights.Footnote ⁸⁹ Thus, the judiciary – through both the Meatrael decision and Barak's letter – was directly involved in the phrasing of Basic Law: Freedom of Occupation, and the birth and legitimation of the Israeli sunset override.

The deal being hatched demanded Shas’ support throughout the peace process in exchange for the Rabin government's protection of the status quo in religious matters, and not just in prohibitions against importing non-Kosher meat. The means used was the override. During the passage of the Basic Law in 1994, MKs accused the government of enacting this statute as a ‘bribe’ to Shas. Some condemned the deal, arguing that the Declaration of Principles and its implementation would lead to further loss of life.Footnote ⁹⁰ Many argued that, by law, the quid pro quo coalition agreement should be made known to the Knesset and to the public before the vote on the Basic Law and the law on the prohibition of importation of non-Kosher meat.Footnote ⁹¹ The government's spokespeople denied the existence of this coalition agreement.Footnote ⁹²

There was another incentive for the Knesset to quickly amend Basic Law: Freedom of Occupation. The 1992 Basic Law contained a different sunset clause, which was set to expire in March 1994, and which preserved prior existing law.Footnote ⁹³ A similar clause existed in Basic Law: Human Dignity and Liberty with no expiration date. The Knesset believed that, without a permanent preservation clause, the 1992 Basic Law: Human Dignity and Liberty posed a serious challenge to existing incompatible legislation, consisting primarily of laws dealing with security or religious matters. Even with that insight, it did not anticipate that Basic Law: Freedom of Occupation would pose a challenge to existing law. The Knesset intended within two years to survey and amend all existing law to conform with Basic Law: Freedom of Occupation. As March 1994 was approaching, advisers from the Justice Ministry alerted the Knesset that chaos would ensue if the validity of the preservation clause was not extended.

The 1994 Basic Law: Freedom of Occupation was adopted hastily, within less than a month.Footnote ⁹⁴ Some MKs assumed wrongly that they were voting for the statute prohibiting the importation of non-Kosher meat rather than for the Basic Law.Footnote ⁹⁵ Many of the most important provisions in the Basic Law were not included in the first reading. When they appeared in the second and third readings, many MKs were unaware of the changed content.Footnote ⁹⁶ Both Prime Minister Rabin and Shas later ‘discovered’ that the Basic Law for which they voted declared that the rights enumerated in it and in Basic Law: Human Dignity and Liberty would be respected in accordance with principles embodied in the Declaration of Independence, and they felt ‘cheated’.Footnote ⁹⁷ Both Shas and Rabin claimed they never intended to incorporate the principles of the Declaration of Independence into the Basic Laws. Shas never returned to the coalition, which defeated at least one purpose of the amendment of the Basic Law.Footnote ⁹⁸ This history does not easily support the ‘redemption’ story that has been ascribed to the 1994 enactment. The enactment of the 1994 Basic Law: Freedom of Occupation, although passed by a majority of 58 MKs (67 to 9), does not attest to broad, deep, and decisive support for the Basic Laws.

8. What Lapses? The Statute or the Override?

The override clause in Basic Law: Freedom of Occupation differs from the Canadian version. When an Israeli override lapses after four years, the entire statute and the override become ineffective. In contrast, in Canada, even when an override provision lapses, the statute that embodied the override remains intact. With the lapse of the override, the statute is no longer immune from judicial review by the Court. The Canadian mechanism thus assumes that the legislature may be wrong in its belief that a statute needs an override provision. If so, the Court will make that determination and retain the validity of the statute, as has in fact happened in Canada.Footnote ⁹⁹ The Canadian override mechanism expresses the idea that the Court and the legislature may have different interpretations of what is constitutional.

Ayelet Shaked, Minister of Justice during Netanyahu's fourth term as Prime Minister, promoted the idea of amending Basic Law: Human Dignity and Liberty to include a sunset override clause that will empower the Knesset to express disagreement with the Court's holding of constitutionality. She suggested that the judicial interpretation of constitutionality should not prevail over the legislature's interpretation of what is constitutional. This was her position before becoming Minister of Justice.Footnote ¹⁰⁰ However, the assumption of the Israeli override clause, as exhibited in the current Basic Law: Freedom of Occupation, is different. The Basic Law assumes that if the Knesset uses an override then an override is required, and its lapse is an indication that the statute is unconstitutional and thus invalid. In contrast to the Canadian model, the Israeli override mechanism assumes that both bodies share the same view about the constitutionality of the statute.Footnote ¹⁰¹ If the legislature uses an override, the statute is definitely unconstitutional, but it is nonetheless effective for a limited duration. Thus, the current Israeli sunset override is a mechanism designed to allow deviation from the Basic Law, not to express disagreement with the Court's interpretation of the Basic Law. The Israeli sunset override mechanism creates a non-rebuttable presumption of unconstitutionality of the statute, using override semantics; in Canada, such a presumption is rebuttable.

While an override mechanism that enables the overriding of the Constitution may implicitly be read to allow override of judicial decisions interpreting the Constitution, the reverse may not be true.Footnote ¹⁰² That is, we may envision a mechanism that overrides the Court but not the Constitution.Footnote ¹⁰³ Such an approach breaks the Court's identification with the Constitution. It assumes that no constituted body, not even the Court, should be identified with the constitution-making power. Israel opted for the stronger mechanism of granting the legislature the power to override the very Constitution – its Basic Laws. This stronger model obviously includes also the lesser power to override judicial decisions.

9. Overriding the Court

The replacement of Basic Law: Freedom of Occupation did not suffice to bring Shas back to the coalition. Instead, Labour and Shas reached further understandings. The ‘commodities’ exchanged during the deal remained the same: support for the peace process in return for maintaining the religious status quo. The means devised also remained similar: an override. The two political parties signed a letter of understanding on 13 March 1994 – four days after the adoption of Basic Law: Freedom of Occupation – stating, inter alia, that ‘if there is a deviation from the religious status quo, the parties are committing to mend the deviation by proper legislation’.Footnote ¹⁰⁴

The Court interpreted this coalition agreement to mean that the two political parties had pre-committed in an omnibus fashion to override by legislation any judicial decision that deviated from the religious status quo. It viewed the agreement as an attempt to threaten the Court not to deviate from the religious status quo because any attempt to do so would be futile. In the words of Vice-President Barak, ‘every judicial decision that deviates from the constitutional status quo becomes the “poison pill” that destroys itself’.Footnote ¹⁰⁵ Such judicial decision would automatically initiate the legislative override process to undo the decision. This is an implied threat to affect judicial independence by making the judges consider the threat rather than the law regarding religious matters. The Court treated this agreement as an attempt to break public faith in the judicial system. In the words of Barak, ‘[w]ho will go to a doctor whose patients die one after the other?’.Footnote ¹⁰⁶

The justices held that the agreement infringed basic principles of separation of powers because it violated the proper dialogue that should exist between the branches of government.Footnote ¹⁰⁷ The legislature may decide to overturn a specific judicial decision, but it must not pre-commit to an omnibus override of judicial decisions. There must be a process by which decisions are examined on their own merits. A proper constitutional dialogue requires the Court to justify its decisions and the legislature must listen to that justification before deciding whether to overrule it by proper legislation. Even then, the legislature should not be able to interfere retroactively with the applicability of the decision between the parties to the case. The legislature may override the decision only as it pertains to future cases – for example, regarding its precedential nature.

One of the prominent examples weighing on the justices was the Bavli decision of 7 February 1994, in which the High Court of Justice ordered the Rabbinical Courts to default to a presumption that couples are equal owners of their property. The coalition agreement would negate this decision and others like it, which are necessary for democratic notions of equality.Footnote ¹⁰⁸

Despite the harsh criticism against the coalition agreement, the Court refrained from invalidating it by a majority of three to two, with Vice-President Barak in the minority. With his swing vote, Justice Goldberg agreed with the harsh criticism of the minority but decided to refrain from invalidating the coalition agreement only because the judicial branch had self-interest in the result of the decision. He believed that invalidating the agreement would injure public faith in the judiciary more than a result which abstained from intervention.Footnote ¹⁰⁹ To express the justices’ disdain for the mechanism set in the coalition agreement, the Velner decision coined the term ‘a statute to override (or circumvent) the High Court of Justice’.Footnote ¹¹⁰

10. On the Delicate Relationship between the Override and Constitutional Amendment

In Canada, a simple majority of the legislature of either the province or the federation is all that is needed to exercise the override power.Footnote ¹¹¹ Amending the Charter requires a majority in each house of the federal assembly and a majority in the legislative assemblies of at least two-thirds of the provinces that represent at least 50 per cent of the total population of all the provinces.Footnote ¹¹² Thus, it is far more difficult to amend than to override the Canadian Charter. The Canadian legislature needs the override if it is to have the last say in constitutional matters.

In contrast, exercise of the sunset override in Israel requires only the support of an absolute majority of the Knesset – the same majority required to amend Basic Law: Freedom of Occupation – but the override is statutory while amendments of the Basic Law must be accomplished by an enactment titled ‘Basic Law’. The override is temporary; only an amendment becomes a permanent feature of the Constitution. The Knesset is empowered to both override and amend the Basic Law. Supposedly, the override constitutes an exercise of legislative function, and the amendment represents an exercise of constituent power.

Because it is so easy to amend Basic Laws by merely giving the right title to the enactment (‘Basic Law’ rather than ‘Law’ alone), some have suggested that there is no place for an override power in Israel. Notably, most Basic Laws may be amended by simple legislative majorities.Footnote ¹¹³ The legislature may thus have the last word in constitutional issues simply by amending the Constitution. These scholars thus argue that any deviation from the Constitution should be performed via amendment alone. The amendment itself may express a transitory provision that lapses after a certain period. If an amendment were the only way to circumvent the Constitution, then the legislature might refrain from deviating altogether. This is so, because the political price exacted is greater when amending than is the case when simply overriding the Constitution.Footnote ¹¹⁴

Others have suggested that a general sunset override power in Israel should make the override more difficult to exercise than amending the Constitution. Thus, the majority required to exercise an override should be at least 65 or 70 MKs – a much greater majority than the minimum majority of 61 MKs typically brought together by any Israeli coalition agreement to form a government.Footnote ¹¹⁵

My argument is different. I treat the constitutional amendment power on a par with the original constitution-making power. The same body in charge of originating the Constitution should be in charge of amending the Constitution.Footnote ¹¹⁶ In Canada, both the constitution-making and constitution-amending powers are entrusted to the Canadian People, not the legislature. In contrast, in Israel, both powers are entrusted to the legislature.Footnote ¹¹⁷ Of the two powers to override and amend the Constitution, only the override power, by its very nature, must be entrusted to the legislature, as is the case in both Canada and Israel. This is so, since the body that can make or amend the Constitution may mould the provisions to its liking.Footnote ¹¹⁸

The override power does not attempt to rewrite the content of the Constitution. It merely deviates from its provisions, or from a related judicial interpretation, for a limited duration in a specific context. To preserve the Constitution as an ageless document, the number of amendments and the duration of deviation should both be restricted. Only when the same topic has been overridden multiple times can it be argued that there is a de facto constitutional amendment. Thus, repeated use of the override in a specific context after a certain period becomes unconstitutional. The courts should require the ‘chronic deviator’ to do so via constitutional amendment. This should be the case in both Israel and Canada. However, the override should not become more difficult to achieve than an amendment, to avoid incentivising the legislature to choose the amendment option first.

Further, a constitutional system should not require supermajority support of legislators as a precondition for exercising the override power. The override arose against the backdrop of parliamentary sovereignty to enable the legislature to have the last say in constitutional matters for a limited time period. Requiring legislative supermajority support goes against this tradition of parliamentary sovereignty and denies the parliamentary majority the power to decide. This is why, in Canada, the legislature may exercise the override power by simple majority, and why, so far, Israel does not require more than absolute legislative majority to exercise its sunset override provision.

In fact, Israel's experience with the meat crisis exhibits this understanding of the override. At first, within six days of the enactment of Basic Law: Freedom of Occupation of 1994, the legislature enacted the Importation of Frozen Meat Law containing ‘notwithstanding’ language.Footnote ¹¹⁹ Four years later – after gaining experience with the sunset override and remaining committed to the prohibition on importation of non-Kosher meat – the Knesset amended Basic Law: Freedom of Occupation to enable the prohibition to become a permanent fixture of the Constitution.

The Knesset tried to obscure its goal in 1998 when phrasing a constitutional amendment to make the Meat Law permanent. In that sense, the Knesset did try to grant the Constitution a ‘majestic’ style.Footnote ¹²⁰ However, I reject the stronger contention that the override mechanism itself was born in 1994 to enable this camouflage.Footnote ¹²¹ As I have shown, the override is derived from the judicial decision in Meatrael, and it represents an evolution from the common law override. It arose out of the confusion between how to deviate from and how to amend the Constitution.

This confusion between infringement and amendment was so prevalent during the enactment of Basic Law: Freedom of Occupation in 1994 that the Basic Law's own constitutionality was put to trial before the Court. The petition suggested that the entire Basic Law was unconstitutional for infringing the limitation clause of Basic Law: Freedom of Occupation from 1992. The Court dismissed the petition, explaining that infringement, which is performed by the regular legislature, should meet the limitation or override tests, while amendment is carried out by the legislature as a constituent assembly and need only meet the test of rigidity (typically a procedural test – the title of ‘Basic Law’ and sometimes also with a low threshold of majority support).Footnote ¹²²

11. Compatibility of the Override with the Constitutional System

The nexus between the override and constitution-making (including amendment) power is deeper than that. It is often asserted that the Canadian override fell into disuse because of the abusive way in which it was used historically. These abhorrent precedents led to a general disdain towards the override by the public. The override was viewed as illegitimate and unethical. In a sense, the idea of the override – to deter the legislature by shaming it into refraining from infringing rights – succeeded; it is rarely used in Canada.Footnote ¹²³

The birth of the Israeli sunset override may also be viewed as tainted. In fact, Barak uses the term ‘poison pill’, derived from the Velner decision, to denounce the proposal for a general sunset override power in Israel.Footnote ¹²⁴ Further, the override was the price paid for trading the peace process for religious status quo. In addition, in both Canada and Israel, the minority – whether Quebec or the ultra-orthodox religious political party, Shas – utilised the override to circumvent the majority will. Should we thus anticipate that the Israeli sunset override will fall into disuse, even if adopted as a general mechanism applicable to all Basic Laws? Some have suggested that not only will Israel refrain from applying the override, but its existence will ease the Court's work by legitimising its decisions to invalidate certain statutes.Footnote ¹²⁵ In that sense, the message conveyed by judicial invalidation of statutes might become a challenge to the legislature: if the legislature disagrees with the Court, it may override. In this way, no harm would be done by the judicial decision.

I argue otherwise. It is not the precedential uses of the override, but the compatibility of the override with the constitution-making (including amendment) process that determines whether it will be used in a given system. The override technique aligns with parliamentary sovereignty systems and is foreign to a popular sovereignty approach. We should expect override techniques to emerge in parliamentary sovereignty systems, even absent a text. The reverse is also true: were a popular sovereignty system to explicitly embody an override technique, we should expect that this technique would not be utilised.

Why is that so? As I have shown, the ‘manner and form’ model implies a ‘notwithstanding’ technique, even if the Constitution does not contain an explicit clause to this effect. Under ‘manner and form’, any limitation (substantive entrenchment) clause may be translated into a procedural clause, which allows parliament to explicitly depart from it. The override clause is implicit in a system of manner and form, and allows the system to be faithful to majority rule. This is also why exercising notwithstanding powers usually requires a bare majority or an absolute majority.

In contrast, under the popular sovereignty model, the legislature should not be able to override the will of the People by simply declaring its intention to do so. This should be true regardless of whether the constitutional text contains an explicit override clause.Footnote ¹²⁶ If the Constitution lacks an explicit override mechanism and the legislature explicitly overrides, breaching substantive entrenchment provisions, this will prompt the courts in deciding the unconstitutionality of the breaching statute. If the legislature itself declared that it did not fulfil the requirements of substantive entrenchment, why should the courts hold otherwise?

However, the argument is stronger than that. Even if the Constitution included an explicit override mechanism, the result should remain the same. The People's consent to an override mechanism in the Canadian Charter, to be used in a specific context, is incompatible with a popular sovereignty Constitution if its exercise requires only a simple legislative majority. Simple legislative majorities should not be able to overcome the popular will as embodied in the content of the Constitution.

These theoretical differences manifest themselves in various constitutional systems. In Canada, for example, the notwithstanding clause fell into disuse, and politicians often treat it as illegitimate – but not because political actors are not playing their cards right, as suggested by Gardbaum,Footnote ¹²⁷ and not because Quebec misused the override. Instead, the negative regard for the override clause in a popular sovereignty system, such as the Canadian system, can be explained by the inability to justify the ‘notwithstanding’ technique. The Canadian Charter was adopted as a result of a popular sovereignty process, which involved the consent of the federal parliament and all provincial premiers except for Quebec.Footnote ¹²⁸ A simple majority of the legislature should not overcome ‘We the Canadian People’ enactments. It is no coincidence that the United States did not adopt an override mechanism in that its Constitution is also based on popular sovereignty. Further, the United States never operated under parliamentary sovereignty; thus the override could never have been compatible with its constitutional system.Footnote ¹²⁹

By contrast, Israel employed the ‘notwithstanding’ technique repeatedly during the founding era, even without an explicit clause, because both the legislature and the Supreme Court understood that it was legitimate within a parliamentary sovereignty structure. Were it to explicitly incorporate the mechanism in all its Basic Laws, Israel should also expect wide use of the ‘notwithstanding’ techniqueFootnote ¹³⁰ since the legislature dominates the country's constitution-making process.Footnote ¹³¹ It is high time for Israel to strengthen its constitutional commitments by requiring the People's consent for its constitutional provisions. This would obviate the override. Otherwise, we should fear the rule of the override power.