NCA Bill: Can Mauritius's Supreme Court Still Strike It Down?

As Mauritius presses ahead with its controversial National Crime Agency (NCA) legislation, a critical question is emerging among legal professionals: once this law is passed — potentially with a three-quarters parliamentary majority that would embed it into the Constitution — what room is left for the courts to push back? In the second instalment of a four-part interview with ION News, attorneys Mohammed Hosenbux and Khadijah Hosenbux of M. Hosenbux Law Chambers break down what legal avenues would remain open before the Supreme Court of Mauritius. **Why a Constitutional Majority Changes Everything** The NCA bill, if passed via the special majority required under Section 47 of the Mauritian Constitution, would insert new provisions — specifically, a proposed Section 71A and an entirely new Chapter VIIIA — directly into the Constitution itself. This is not a minor procedural detail. Under Mauritian constitutional law, once a provision becomes part of the Constitution, it cannot be challenged by reference to any other constitutional provision. In simple terms: the courts cannot strike down one part of the Constitution by pointing to another part. That door, as the Hosenbux lawyers put it, is firmly closed. **What Challenges Are Still Possible?** However, the legal experts identify at least one avenue that remains open: a *procedural challenge*. This would ask the Supreme Court not whether the law is good or fair, but whether Parliament followed the correct constitutional process to pass it — specifically, whether the right tier of the Section 47 amendment procedure was used. Mauritius's Constitution has a tiered amendment system. Some provisions can be changed by a simple majority, others require a two-thirds majority, and the most protected require a three-quarters majority. If the government used the wrong tier — even inadvertently — that could, in principle, be challenged. **The Section 9 Argument** A second potential challenge centres on Section 9 of the Constitution, which protects individuals against arbitrary searches of their homes. The NCA bill, as currently drafted, would remove the requirement for prior judicial authorisation for most residential searches, and would allow public surveillance and so-called *controlled operations* — undercover investigations — on the sole approval of the NCA's Director-General, without a judge signing off. The legal question the Hosenbux lawyers raise is whether this constitutes a *reduction in the substance* of the right protected under Section 9 — which would require a higher amendment threshold — or merely a *regulation of how that right is exercised*, which carries a lower bar. The distinction is legally significant, and could determine whether a future court challenge has any traction. **What This Means for Mauritians** For ordinary citizens, the stakes are real. If the NCA is given the power to search homes and conduct surveillance without prior court approval, the traditional protection of having an independent judge authorise such intrusions would be gone. Critics — including the Bar Council of Mauritius — have already raised concerns about this shift in power. The Hosenbux analysis suggests that while the constitutional route may be partially blocked once the law passes, procedural and rights-based arguments could still be tested before the Supreme Court. Whether those arguments succeed, however, would depend heavily on how the legislation is ultimately worded and which amendment tier Parliament uses. The remaining two parts of this interview are expected to be published by ION News in the coming days. Source: ION News