It is mentioned in the Introduction to the Constitution Part One, Article 36d: in the explanation that the Khaleefah has the right to remove the assistant (Mu’aawin) proven by analogy (Qyias) to the one given proxy (wakala) unless there is a narrated text which prohibits removing him in special circumstances. Please clarify the specific circumstances that prohibit the Khaleefah from removing the Mu’aawin? And Baraka Allah Feekum in advance for your answer, wassalamu Alaikum, and May Allah protect you.
From Omar Almukhtar
Wa Alaikum Assalam wa Rahmatullahi wa Barakatuh,
The text contained in the book, Introduction to the Constitution, [English edition: p. 243/ Arabic edition p. 151] is “…However, since the Assistant only takes his authority from the Khaleefah, and he is his representative, then the Khaleefah would have the right to remove him, proven by analogy to the one given proxy, since the one who gave proxy to someone has the right to remove it, unless there is a narrated text which prohibits removing him in special circumstances…”
Saying “Unless there is a narrated text which prohibits removing him in special circumstances” is not referring to the Assistant but refers to the one given proxy. Since the proxy contract is permissible in origin, so the one who gave proxy and the one given proxy can nullify it when they wanted, but the Fuqaha (jurists) cited circumstances in which the contract becomes compulsory, wherein the one who gave the proxy is not entitled to remove his representative; for example, if the representative is given a proxy in a dispute. The Hanafi school of thought stated that “if the proxy is in relation to the rights of others, then it is not allowed to remove it without the satisfaction of the right holder”. There are some other circumstances mentioned by the scholars in preventing the one who gave proxy from the removal of his representative.
Thus, the meaning of the sentence that you asked about is not that which you imply, as the meaning of it is that, the one who gave proxy has the right to remove his representative, unless there is a narrated text which prohibits removing his representative, in special circumstances, and this does not apply to the Assistant. Thus, the Assistant may always be removed by the Khaleefah and there are no special circumstances where the Khaleefah is not allowed to remove the Assistant.
The sentence was itemized as such because it was inferred on the subject of the proxy, and the origin of the proxy is that it a permissible contract that permits the one who gave proxy to remove his representative unless there is a narrated text which does not allow the one who gave proxy to remove his representative. And the Assistant is like a representative for the Khaleefah; it is permissible for a Khaleefah to remove him in analogy to the one who gave proxy having the right to remove his representative, according to the original rule of the proxy which also applies to the Assistant. The special circumstances are not reflected in his right, so the Assistant may be removed at any time.)
Ata Bin Khalil Abu Al-Rashtah
20th Ramadan 1435 AH
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