Abstract This article aims to contribute to the studies on democratic resistance amid populist autocratization by analyzing repression against civil society, democratic responses, and the interplay between them. It explores how and in what forms repression and democratic resistance develop, are contained and sustained during such autocratization, with an emphasis on populist electoral autocracies. Civil society plays a role in engaging with populist autocracies that possess electoral legitimacy, in contrast to the situation under closed autocracies, although these interactions occur under challenging conditions. The mutually reinforcing relationship between liberal constitutional constructs and civil society challenges the stability of a populist electoral autocracy. The article employs several instances, primarily focusing on Türkiye’s populist electoral autocracy, to assess conceptual findings on repression, investigate the autocratic challenges, and illustrate strategies for democratic resistance. It highlights the roles of feminist mobilizations, human rights defenders, democratic partnerships, and judicial review against ongoing repression in nondemocratic contexts where democratic resistance appears robust. Despite the challenges faced by civil society in non-democracies, the vibrant practices of democratic resistance underscore the necessity for reforms in liberal-democratic constitutional frameworks. These reforms may encompass inclusive formal arrangements for civil society and institutional arrangements for democratic partnerships by reconsidering the civic-institutional relationship. In light of democracy-learning and democracy-defending experiences in nondemocracies, further research is needed on constitutional innovations, particularly regarding enhanced political participation, democratic partnerships, protection for human rights defenders, guarantees for political opposition, prevention of judicial repression, and rights-enforcing judiciaries.

This article explores on-bench judicial resistance within an electoral autocracy by analyzing the Turkish Constitutional Court’s struggle to protect opposition parliamentarians. It aims to present a nuanced analysis of the Turkish Constitutional Court case law under pressure, examining its role in confronting the regime. The cases discussed involve Kadri Enis Berberoğlu, Ömer Faruk Gergerlioğlu, and Can Atalay, who were prominent public figures before their political mandates due to their roles in civil society resistance as a journalist, a medical doctor, and a lawyer. The article investigates how, to what extent, and under what conditions the Court has legally mobilized to defend the political opposition in notable cases involving Berberoğlu, Gergerlioğlu, and Atalay. It also highlights the conflict between the Court and the criminal judiciary, as well as the interplay between autocratic and democratic partnerships in a non-democratic context.

Under Turkey’s democratic breakdown, the Turkish Constitutional Court offers a case study to identify the dynamics of judicial politics in electoral autocracies. Although the Court has been subject to criticism regarding its low commitment to the political pluralism and rights-based approach previously, the current situation presents itself differently. It is marked by a massive erosion in democratic qualities including an abuse of the judiciary against dissents in an unprecedented manner. Yet, the Court is still formally independent and empowered through constitutional norms such as the fixed tenure, retirement age, and jurisdiction in crucial matters. Since the institutional guarantees of the Constitutional Court are untouched, it has still the potential to become a major political player. Therefore, its study may also contribute to the comparative scholarship on the role of constitutional review under new pressures of the third wave autocratization that contraction and expansion dynamics of judiciaries can be better understood. The present study aims to feature the judicial politics of the Court under Turkey’s current democratic regression by conceptualizing a resistance-deference paradox on the ground politically significant cases.

Turkey's Democratic Erosion:On Backsliding and the Constitution Bertil Emrah Oder (bio) INTRODUCTION In March of 2021, President Recep Tayyip Erdoğan introduced an action plan on human rights in Turkey. His opening speech included a quote from Malcolm X: "I am for truth, no matter who tells it. I am for justice, no matter who it is for or against" (Erdoğan 2021). Emphasizing the rule of law and human rights throughout his speech, he reiterated his goal of drafting and ratifying a new constitution to mark the Republic's centenary in 2023. The constitutional call coincided with developments perpetuating Turkey's constitutional backsliding, including its move to ban the third largest political party, the pro-Kurdish Peoples' Democratic Party (HDP), and its withdrawal from the Council of Europe's Istanbul Convention on the prevention of violence against women and domestic violence (Official Gazette 2021). As of April 5, 2021, 92 journalists were under arrest, giving Turkey the highest score in terms of threats to journalists in the Council of Europe countries (Council of Europe, www.coe.int/en/web/media-freedom, accessed April 8, 2021). Canan Kaftancıoğlu, one of the leading politicians of the main opposition CHP (the Republican People's Party) in Istanbul, was charged with a series of crimes because of her tweets between 2012 and 2017. Her charges include defamation, inciting public hatred and violence, and insulting the president. The parliamentary immunity of a deputy of the pro-Kurdish opposition HDP, Ömer Gergerlioğlu, was removed [End Page 473] (CoE Parliamentary Assembly 2021), and he was convicted of dissemination of terrorist propaganda by sharing on social media news that had been published by a media outlet. Yet, despite the government's continued and increased actions to undermine democracy in the country, its representatives assert that Turkey needs a new and civilian constitution for the people. Criticizing the constitution-making under military interventions in Turkey, Erdoğan stated, "The new constitution's text, which will emerge with the widest possible consensus, will be submitted for the nation's approval" (Hürriyet 2021a). Shortly after Erdoğan's announcement of the action plan on human rights and his call for a new constitution, the Democracy Report 2021 of the V-Dem Institute placed Turkey on a list of the top 10 autocratic countries and in third place for democratic decline, behind Poland and Hungary, based on recent scores in the Liberal Democracy Index and Electoral Democracy Index (Alizada et. al. 2021, 11, 19). The country had moved towards the consolidation of liberal democracy after 2001 by using deliberative constitutionalism and Europeanization policies in line with the EU accession process. However, since 2014, Turkey has found itself in the bottom 20 percent in the global rankings on the Liberal Democracy Index and has lost its status as an electoral democracy. At present, Turkey's regime type falls within an intermediate category of competitive nondemocracy, i.e., an electoral autocracy (Levitsky and Way 2010, 14–16), as the opposition can still contest governmental issues or rulings using democratic institutions (Alizada et. al. 2021, 19). Under the current circumstances, it is a nondemocracy with multiparty elections, wherein electoral integrity has been secured, mainly by vigilant civic oversight, as observed in Istanbul's mayoral rerun election in 2019. Ekrem İmamoğlu, the main opposition's candidate, won the election in a landslide victory, which was a heavy loss for Erdoğan's Justice and Development Party (AKP) after its 25-year rule in Turkey's largest city. Turkey's current democratic erosion towards autocracy occurred under the AKP's nearly two-decades-long governmental rule. In contrast with the rapid and complete collapse of democracy by military [End Page 474] interventions in 1960 and 1980, this represents a slow degradation. It demonstrates serious backsliding in multiple areas, including curbs on freedom of expression, the shrinkage of the civic space, a dysfunctional and subservient judiciary, and systemic cronyism. Ironically, the AKP government, led by Erdoğan from 2003 to 2010, oversaw a wave of democratization in Turkey. The AKP came to power by receiving 34.8 percent of the vote in 2002. Prior to the 2002 election, the consensual...

In this introductory chapter to our edited volume on "An Unamendable Constitution? Unamendability in Constitutional States," we explore one of the most fascinating—and controversial—developments in constitutional design in the last half-century: the rise of unamendability. Whether formal or informal, unamendability serves many purposes, and we illustrate each of them with reference to constitutions around the world. We discuss the substantive, procedural and temporal limitations on constitutional amendment, we highlight the foundational questions in modern constitutionalism raised by unamendability, and we situate each of the thirteen chapters comprising the volume within the literature on constitutional change. Our objective in this volume is to theorize the subject of unamendability and to probe deeply the uses and misuses of unamendability in constitutional design.

Due to unprecedented occupational accidents and various energy projects, socioeconomic issues have come to the fore in Turkey’s heavily loaded political agenda, but are not being discussed from a constitutional perspective that requires rights-based and justiciability analysis. The present article deals with socioeconomic policies from a perspective of constitutionalized socio-economic rights which bind the legislative authority. At first, we trace back and portray the constitutionalization patterns of socio economic rights in Turkey. Second, we focus on the claims invoking socio-economic rights before the Constitutional Court, the so-called justiciability. Third, we critically assess two selected salient issues that refer to a devastating account of failures and recurrent practices of ignorance, that is, the Soma and Cerattepe cases.

The right to property is probably the oldest real right, much before concepts such as “right” or “real” (as opposed to “personal”) were outlined. It has often been regarded as a “natural” right, derived from nature. Therefore, controversies on property are certainly as old as humanity itself. However, in the revolutionary period, the right to property was deemed a fundamental right and included as such in the charters approved at that time. This has continued up to our times, including in modern constitutions and international and regional human rights treaties. Its rationale is mostly to protect the right to property against governmental action, even though there are opposite policy preferences as to regulation of property rights at the domestic level. This is why taking property in the public interest or in the public need is frequently mentioned in those texts. However, the restrictions deriving from the protection of the public interest in regard to environmental values and livelihoods, natural resources, coasts, forest villagers or indigenous people are recognized in an overwhelming majority of the legal orders at the constitutional or statutory level or in the case law. Those limits become visible especially in regard to land law in different scenarios. Developmental challenges, new technologies and emerging economic powers or models necessitate portraying and rethinking land law restrictions from the perspective of human rights since the claims as to the right to property as a fundamental right transform and develop rapidly in domestic or regional human rights litigation and in constitutional designs. The land law disputes, which had been traditionally viewed as a quintessential local matter, are increasingly affected by supranational legal norms and procedures. Accordingly, a number of recurring themes typify the various cases, especially in seeking to strike an appropriate balance between the right to property and the authority of governments to regulate or expropriate land to promote the public interest. This collaborative paper aims at focusing on land law and the limits on the right to property from historical, comparative and international perspectives to analyze continuity, divergences, differences and similarities in approaches in seemingly independent contexts. First, the paper deals with property in land and its limits in Jewish law, canon law, Islamic law and Hindu law, while it puts specific emphasis on Roman law conceptualizations affecting current domestic and international settings. In so doing, the paper seeks to demonstrate what might be considered a counterintuitive argument: while natural law or moral based law theories of property rights are conventionally associated with the right of an individual, the same sets of arguments also point to promoting the interests of the community as a whole, and to the need to strike an appropriate balance between individual and community in constructing land law. Second, it portrays modern constitutional structures based on different policy preferences of two emerging economies, India and Turkey. Third, the paper analyzes international human rights disputes, ranging from claims of protection of rights of indigenous people to conflicts arising from cross-border acquisition of land, in light of the growing case law on these matters. Cutting across many periods and jurisdictions, the paper addresses what is essentially a leitmotif in property law: identifying the tension between individual and community in delineating the boundaries of ownership, control, and use of scarce resources, and the particular resolution of such tension in the case of land.

In 2011, the UN Guiding Principles on Business and Human Rights (“Guiding Principles”) for the first time established an authoritative global standard for preventing and addressing the risk of adverse human rights impacts linked to business activity. These were the product of many years’ research and extensive consultations by UN Special Representative John Ruggie involving government, companies, business associations and civil society around the world. The Guidelines described how states can better manage business and human rights challenges based on the three pillars “Protect, Respect and Remedy” Framework: 1) the state duty to protect human rights, 2) the corporate responsibility to respect human rights, and 3) the need for greater access to remedy for victims of business related abuse. This common paper analyzes the challenges faced as a result of large-scale infrastructure projects, in particular dams. The experiences of five countries are considered – Turkey, Spain, Brazil, India and South Africa – in light of national and international law and the UN Guiding Principles.Dams present particular challenges. They are long-term projects, unlike other businesses. Their impact on local communities is more enduring, ranging from environment to social issues, from national development policies to the resolution of the country’s energy and resource needs, and they have potential human rights impacts, arising from land expropriation, to forced eviction, and to the displacement and resettlement of local communities, and the compensation of victims. But most importantly, they fall beyond John Ruggie’s important UN Guidelines on Business and Human Rights, making this current study especially significant for that reason alone. As we will see, the interests of foreign investors, international treaty obligations, as well as the demands of global institutions such as the World Bank are in addition also further factors that complicate the state’s response – political and legislative – to the challenges raised by dams.The experience of the five countries highlights how legislative, judicial, and executive initiatives have an increasingly important role to play in navigating around these myriad interests. Sections II and III of this paper focus on the legislative experiences of South Africa and Spain, respectively, while section IV explores the various challenges faced by Brazil in the protection of the rights of local population during the two phases of dam development: planning and bidding, and construction and outsourcing. Sections V and VI examine the legislative, political and judicial responses to the issues raised by large scale dam development in Turkey and India.