The Theoretical Limits on the Override Power

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The article proposes a theoretical framework aimed at limiting the Knesset’s override power over Israel’s Basic Laws, arguing that such power must be exercised within strict boundaries to preserve constitutional integrity. Unlike Canada’s override mechanism, which allows for certain rights to be overridden if proportionality requirements are met, this framework suggests that override powers are inherently limited, regardless of how they are phrased in the constitution.

Overrides, according to this theory, should be temporary, limited in scope, and explicitly stated to ensure accountability and public debate. If an override is renewed repeatedly or applied broadly, it becomes a de facto constitutional amendment rather than a temporary infringement. Courts should intervene in such cases, requiring formal amendment procedures to prevent legislative overreach.

The framework distinguishes between legitimate overrides and unconstitutional amendments, arguing that overrides are intended as short-term exceptions to constitutional norms, not mechanisms for fundamentally altering those norms. Courts should view overrides as extraordinary tools, valid only when they clearly respect the temporary and limited nature intended by the constitution. Overrides that contradict core constitutional principles or are effectively permanent should be struck down, ensuring that the legislature cannot undermine constitutional rights through ordinary legislation.

Suggested Citation:

The Theoretical Limits on the Override Power, VerfBlog, Dec. 30, 2022.