—Forhad Hossain, Lecturer, University of Asia Pacific, Bangladesh
The July 2024 Uprising plunged Bangladesh into a deep constitutional crisis that constitutional epistemology alone cannot explain. After Sheikh Hasina’s government collapsed, the constitutional framework for transferring power to a constitutionally recognized interim government became practically inoperative, leaving the uprising forces to operate in a constitutional vacuum. Although some among the uprising forces advocated for a complete rupture with the existing constitutional order, neither the path of total constitutional continuity nor outright revolutionary replacement was pursued. Instead, authority was exercised in a manner unfamiliar to conventional constitutional theory. In this post, I therefore propose the concept of composite constitutional legality (CCL): a form of legality in which extra-constitutional acts are legitimized through constitutional forms to maintain governance, public authority, and institutional stability.
This concept signifies more than a transient political compromise. It clarifies the new constitutional reality that has emerged in Bangladesh and, importantly, why that reality matters beyond Bangladesh. Moreover, CCL provides a conceptual lens for understanding how constitutional systems respond when a constitutional provision remains formally in place but can no longer, on its own, confer legitimacy on a government.
The Concept of Composite Constitutional Legality (CCL)
CCL is introduced during constitutional stasis, when the constitutional order is neither displaced nor capable of managing unfolding political events within its purview. In such moments, legality is constituted from two concurrent sources. The first is constitutional form: the existing constitution, its offices, procedures, and legitimizing authority. The second is extra-constitutional force: political compulsion, negotiated settlements, popular mandates, and emergency arrangements that emanate from outside the constitutional form.
What makes CCL distinctive from other constitutional concepts is that it does not repudiate constitutional legality. Nor does it regard extra-constitutional action as a temporary interruption of legality. Instead, it shelters and legitimizes post-uprising authority through constitutional forms, even when that authority cannot be justified solely by the constitutional text. This generates a composite legality: dressed in constitutional cloth, but not self-sustaining within the constitutional framework.
This position distinguishes CCL from related constitutional theories. First, it is not the same as extra-constitutionalism in the strong Schmittian sense, because it does not aim to replace legality with sovereign decisions. Second, it is not fully revolutionary constitutionalism, since the old constitutional order does not disappear entirely and is not replaced by a completely new founding moment. Third, it is also not merely selective constitutionalism: the focus is not only on selective enforcement or suspension of provisions, but also on structuring a functioning legality from both constitutional and extra-constitutional elements. In this arrangement, extra-constitutional force provides the substantive mandate, while constitutional mechanisms provide institutional form and continuity, each reciprocally legitimating the other within a composite order. Therefore, CCL is a composite concept that balances constitutional survival and transformation.
Bangladesh as a Case Study
Bangladesh’s recent experience clearly illustrates this phenomenon. To begin with, the 1972 Constitution did not fully prescribe the formation of an interim government. After the July uprising, ordinary constitutional succession was no longer possible. However, the resulting government did not adopt a purely revolutionary form. Instead, the extra-constitutional force compelled the president to dissolve parliament and seek an advisory (non-binding) opinion from the Supreme Court of Bangladesh under Article 106 of the Constitution regarding the formation of an interim government. The interim government then took office, taking the oath as required by the Constitution. While the uprising and its political agenda shaped its substantive mandate, its formal legitimacy stemmed from the constitutional basis. Thus, the government rested on a composite legality.
Similarly, the drafting of the July National Charter (Constitution Reform) Implementation Order 2025 followed a similar pattern. Because the Bangladesh Constitution did not specifically provide for an extra-constitutional referendum for fundamental reform, the interim government instead invoked constitutional authority and form to issue an order under Article 93 of the Constitution, translating an extra-constitutional political demand into a legally binding state. In this sequence, the referendum served as a source of democratic legitimacy, and the Constitution Reform Assembly was portrayed as the institutional vehicle through which that mandate could be realized. Once again, although the operative force was external to the constitutional text, legitimacy was sought through formal constitutional channels, using the CCL mechanism.
This was reflected in both the referendum and the thirteenth parliamentary election, both held in 2026 within the scope of composite legality. Although a seven-judge bench led by Chief Justice Syed Refaat Ahmed restored the constitutional provision for a non-party caretaker government system for future elections, the Court specified that this restored caretaker system would not apply to the thirteenth parliamentary election and would take effect from the subsequent election onward. As a result, the referendums and elections occurred in a space neither fully within the settled constitutional framework nor completely outside of it. Therefore, their legitimacy relied on the same composite legality structure.
Together, these developments indicate that the constitutional order in Bangladesh since the uprising has relied on a recurring mechanism: extra-constitutional forces produce authority, and constitutional forms absorb, stabilize, and legitimize it. Therefore, we see the CCL mechanism at work in this context.
The Limits of the Established Conception of Legality in This Context
The appeal of strict constitutionalism as an orthodox concept of legalityis evident. It ensures legal certainty, procedural discipline, and institutional accountability. In the Bangladeshi context, that position is most clearly expressed in the argument that major constitutional reform must proceed only through the ordinary amendment process and cannot be imposed by bodies or procedures lacking a clear constitutional authority. That concern is a legitimate one and deserves to be taken seriously. A constitutional order cannot long endure if every political stalemate can be translated into a justification for innovation beyond the text. However, the opposite concern is equally serious. In circumstances where the constitutional order has already been fundamentally disrupted, and no relevant legal mechanism can produce a viable transition, orthodox constitutionalism may become inoperable.
Given the limitations posed by the basic structure doctrine, reliance on ordinary amendment alone seems particularly vulnerable in Bangladesh. If parliament exercises its derivative amendment power to enact fundamental constitutional changes, those reforms may be subject to judicial scrutiny later. The issue, then, is not just how to amend the Constitution but how to do so in a manner that would be politically acceptable while remaining substantively constitutional for all future cases.
CCL addresses that challenge by building a bridge between political necessity and legal form. While this model does not fully resolve the inherent tension, it does provide a way to govern in an environment where neither pure constitutional orthodoxy nor explicit extra-constitutional forces offer a viable or stable way forward. By clarifying this transition, CCL highlights the pragmatic path taken in such challenging legal contexts.
The Value of CCL in Constitutional Discourse
The greater value of CCL lies in what it contributes to constitutional law scholarship. While constitutional law has long explored topics such as emergency powers, constituent power, democratic transitions, unconstitutional constitutional amendments, and revolutionary legality, many current crises do not fit into those categories. In practice, constitutions often endure through hybrid arrangements: for example, temporary executives with disputed legitimacy; transitional mandates consolidated through referenda (Richard Albert and Richard Stacey); reform bodies operating between parliament and constituent assemblies; or practices tolerated by the judiciary under the doctrine of necessity (Mark M. Stavsky ). These situations are not marginal exceptions. Rather, they are a constant feature of constitutional life in fragile or polarized democracies.
CCL offers a potentially invaluable analytical lens for such cases. Firstly, it clarifies hybrid legitimacy. Political actors are rarely solely motivated by raw power; rather, their objective is to attain a form of authority publicly recognized as legitimate, even if its legal foundation may be lacking. CCL identifies this pursuit of legitimacy through constitutional form under extra-constitutional pressures.
Secondly, CCL provides the conceptual framework necessary to explain the relationship between constitutional continuity and crisis management. It shows that constitutional endurance is not always a case of strict adherence to the text. Sometimes it comes down to defending the authority of the constitutional order while allowing institutional improvisations around its edges. While this may be a disconcerting insight for formalist theory, it is essential for understanding constitutional practice.
Third, CCL opens a valuable avenue for scholarly investigation concerning constitutional design. If composite legality persists during extreme crises, scholars should consider whether constitutions should proactively acknowledge, regulate, or constrain such mechanisms. The objective is not to enshrine a state of perpetual emergency within the constitution. It is also pertinent to question whether it is reasonable for legal systems to recognize extraordinary transitional instruments without compromising the rule of law.
At the same time, we should be cautious not to romanticize CCL either. Its flexibility contributes to its risks. A concept with adaptable legality can be used to uphold democracy during a constitutional crisis, but it can also be invoked opportunistically to green-light executive overreach or permanent transitionalism. For that reason, academic interest in CCL should not merely be the coinage of a name drawn from law’s lexicon; it should focus on defining its boundaries: when is it justified, what types of public approval are necessary, what time limits should apply, and which institutions might review its application?
Conclusion
Bangladesh’s recent constitutional experience shows that the most politically significant constitutional changes do not always arise solely from formal amendments or judicial interpretation. Nor might they crystallize through hybrid practices of constitutional form and extra-constitutional necessity. Composite constitutional legality provides a means of describing that phenomenon with greater precision. As an idea, CCL explains how authority maintains its status as publicly lawful, even if the constitutional text is inadequately organized to facilitate political transition. As a normative inquiry, it invites a more detailed examination of how constitutions should respond to disruptive events without falling into legal stasis or unchecked political discretion. As a contribution to comparative scholarship, it offers an analytical framework for evaluating the grey area between constitutional continuity and constitutional replacement.
Bangladesh is therefore significant not just as a national case study, but as a site of theoretical innovation. Its recent experience indicates that constitutional law requires a richer vocabulary for moments when legality is neither pure nor abandoned, but composed. CCL is a candidate for that vocabulary.
Suggested citation: Forhad Hossain, From Phenomenon to Concept: The Case for Composite Constitutional Legality in Bangladesh, Int’l J. Const. L. Blog, Apr. 23, 2026, at: http://www.iconnectblog.com/from-phenomenon-to-concept-the-case-for-composite-constitutional-legality/