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7 Ind. J. Const. Design 1 (2020)

handle is hein.journals/indjcstd7 and id is 1 raw text is: Policing in a Democratic Constitution MICHAEL WASCO I. INTRODUCTION Most constitutions contain provisions relating to or impacting policing. Separate from the armed forces and intelligence services, the police are the state's internal security apparatus, and codifying issues related to policing within a constitution can ensure efficient service delivery and human rights protections. Originating from the Libyan constitution making process, this paper provides a taxonomy of options for constitution drafters and scholars. More so than other issues, such as separation of powers or human rights protections generally, policing sections are very country specific. While not advocating for specific best practices, the work gives ample justifications for certain policing principles and concepts, particularly regarding due process and gender matters. In any case, local constitution drafters will need to consider a wide breadth of options for what to include on policing and what to leave to legislative bodies. The constitutions in some countries, such as South Africa, Brazil, the Dominican Republic, Fiji, Kenya, and Nigeria, contain significant detail regarding the policing principles, mandates, and governance. In many other states, the constitution contains very limited detail and defers to national legislation for police formation and oversight. Many factors contribute to these variations, including the security status of the country, the context of the democratic transition, and the chosen overall government structure. Generally, modern constitutional representative democracies require police to serve and protect civilians. The current social movements in the United States addressing mistreatment of people of color and militarization of the police highlight the challenges of managing and training police. Constitution drafters must grapple with complex issues like the potential for misuse of force, the politicization of police, and the relationship between the police and the military. These themes are borne out around the world with constitutional language options as diverse as the States themselves. A. Scope and Content This paper analyzes how constitutional provisions may define, govern, or impact police forces. After defining the issue in section two, section three addresses the overall mandate of a nation's police. To which general principles is it beholden? Section four discusses the governance of the police. How do the police function? What is its relationship to other institutions and security sectors? Section five is a deeper analysis of policing in federal and decentralized states. Section six addresses due process and human rights options. Section seven offers some additional constitutional design choices, including gender considerations, integration of the militias, and emergency powers. Section eight gives some final contextual considerations. And finally, section nine offers a table of examples summarizing missions and mandate structures for several countries. 1

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