(Series of Answers by the Eminent Scholar Ata bin Khalil Abu al-Rashtah, Ameer of Hizb ut-Tahrir, to Questions from Visitors to his Facebook Page "Fiqhi")
Question:
It was stated in the Introduction to the Constitution, Volume 1, Article 36 - d: In the detail, it says that the Khalifah has the right to dismiss the Assistant (Mu’awin) by analogy to the agent (Wakil), unless a text is reported preventing him from dismissing him in specific cases. I hope for a clarification of the specific cases that prevent the Khalifah from dismissing the Assistant? May you be blessed in advance for the answer, and peace be upon you and may you remain under His protection. End.
Answer:
(Walaikum Assalam Wa Rahmatullahi Wa Barakatuhu)
The text mentioned in the book The Introduction, p. 151, is: (...However, since the Assistant only takes authority from the Khalifah and acts as a deputy for him, the Khalifah has the right to dismiss him by analogy to the agent (Wakil), because the principal (Muwakkil) has the right to dismiss his agent, unless a text is reported preventing him from dismissing him in specific cases.) End.
His saying "unless a text is reported preventing him from dismissing him in specific cases" does not refer to the Assistant, but rather to the agent (Wakil). The original rule in the contract of agency (Wakalah) is that it is a ja’iz (permissible/revocable) contract, so both the principal and the agent have the right to nullify it whenever they wish. However, the jurists mentioned cases where the contract becomes lazim (binding), and thus the principal does not have the right to dismiss the agent; for instance, if the agent is a proxy for litigation. The Hanafis have stated:
إِذَا تَعَلَّقَ بِالْوَكَالَةِ حَقُّ الْغَيْرِ فَإِنَّهُ لاَ يَجُوزُ الْعَزْل بِغَيْرِ رِضَا صَاحِبِ الْحَقِّ
"If a third party's right is attached to the agency, then dismissal is not permissible without the consent of the right-holder."
There are some other cases mentioned by the jurists regarding preventing the principal from dismissing his agent.
Thus, the meaning of the sentence you asked about is different from how you understood it. It means that the principal has the right to dismiss his agent unless a text prevents him from dismissing his agent in specific cases, and this does not apply to the Assistant. The Khalifah may always dismiss the Assistant, and there are no specific cases in which his dismissal is not valid.
The sentence is phrased this way because the deduction was made using the subject of agency (Wakalah). The original rule of agency is that it is a ja’iz contract where the principal may dismiss the agent, except in specific cases where the principal may not dismiss the agent. The Assistant is like an agent for the Khalifah, so it is permissible for the Khalifah to dismiss him by analogy to the principal dismissing his agent according to the original ruling of agency, which also applies to the Assistant. The "specific cases" do not apply to him; therefore, it is permissible to dismiss the Assistant at any time.
Your brother, Ata bin Khalil Abu al-Rashtah
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