第四十条
Article 40
导致哈里发状态改变、从而使其被罢免哈里发职位的事项有三种:
The issues which alter the state of the Khalifah and ,therefore, remove him from the Khilafah are three:
a. 如果国家领导人的任职条件之一出现缺失,例如他叛教、公然犯罪、精神失常,或类似情况,则属于此类。因为这些既是订立契约的条件,也是持续任职的条件。
a. If one of the contracting conditionsof the leadership of the State becomes deficient, such as if he apostatises, or commits flagrant sin, or becomes mad, or anything similar. This is because these are from the conditions of contracting, and the conditions of continuation.
b. 因任何原因而无法履行哈里发(Khilafah)职责的情形。
b. The incapability to execute the duties of the Khilafah, for any reason whatsoever.
c. 对他的强迫,使其无法依照伊斯兰教法,凭自己的判断为穆斯林的利益独立行事。因此,如果某种强大的力量能够制服他,使他无法单凭自己依照伊斯兰教法的规定管理臣民的事务,那么在法律上他就被视为不具备履行国家职责的能力,此时他将被罢免哈里发之职。这种情况可能出现在以下两种情形中:
c. Coercion over him which makes him unable to independently act in the interests of the Muslims according to his opinion in agreement with the Shari’ah. So if an overpowering force could subdue him to the point that he became unable to govern the affairs of the subjects by his opinion alone according to the Shari’ah rules, he is considered legally incapable of executing the duties of the State, in which case he would be removed from the Khilafah. This could occur in two situations:
第一种情况:某个人或某群人从其顾问中脱颖而出,对他施加影响,以至于他们开始完全掌控事务的运作。如果认为他能够摆脱他们的影响,则给予一段时间的劝诫;如果他仍不去除他们的影响,则将其罢免。如果认为他无法摆脱他们的影响,则立即将其罢免。
The first situation: For an individual or group of individuals from his advisors to hold sway over him to the point they began to take full control of running the affairs. If it was believed that he could be liberated from their influence, he is admonished for a specific time, and if he does not remove their influence, then he is removed. And if it was not believed that he could be liberated, he is removed immediately.
第二种情况:他成为强大敌人的俘虏,无论是实际被俘,还是因屈服于敌人的影响而受其控制。对此情况需要加以评估:如果仍有希望使他获得释放,则暂缓处理,直到不再有此希望为止;如果已无释放的希望,则立即将其免职。
The second situation: For him to become a prisoner in the hands of an overpowering enemy, either literally or by his submission to the influence of the enemy. This situation is evaluated – if it was hoped he could be liberated, then there is a delay until no such hope remains, and if there were no hope in his liberation, then he is removed; if there was no hope in his liberation, then he is removed immediately.
这一点的证据是关于哈里发条件的那些经文记载,因为这些经文表明,这些条件是持续担任该职位的条件,而不仅仅是取得该职位的条件。当使者ﷺ说道:
The proof for this is the texts that have been related in regards to the conditions of the Khalifah, since these texts indicate that these conditions are conditions for continuation and not simply conditions for taking the position alone. When the Messenger (pbuh) said.
. » لَنْ ي فُْلِحَ قَ وْمٌ وَلَّوْا أَمْرَهُمُ امْرَأَة «.
. » لَنْ ي فُْلِحَ قَ وْمٌ وَلَّوْا أَمْرَهُمُ امْرَأَة «.
“Never will succeed such a nation that makes a woman their leader”(布哈里圣训集所载,由艾卜·伯克勒传述)。这段圣训的表述包含了这一律例:只要某人担任领导者,他就不可以是女性。因此,如果一位担任统治者的男性因任何原因变成了女性,那么他就失去了这一条件,必须立即将其罢免。同样,真主(SWT)说:“信道的人们啊!你们应当服从真主,服从使者,并服从你们中的有权者。”(古兰经4:59)。真主所说的“你们中的”紧接在“有权者”之后,明确表明掌权者必须是伊斯兰教的信奉者,只要他仍担任掌权者的职位。因此,如果掌权者变成了不属于我们之列的人,换言之,成为了不信道者,那么古兰经为掌权者规定的这一特性便随之丧失,即失去了作为穆斯林的条件,此时他应当被罢免,因为他既然不属于我们之列,即不是穆斯林,便不得再担任掌权者。关于哈里发条件的所有经文也同样如此;它们是包罗广泛的经文,涵盖了被描述者必须始终具备的特性,这表明这些条件不仅是就任的条件,也是持续任职的条件。基于此,缔结哈里发职位的条件同时也是罢免哈里发的条件:这些条件的具备是缔结哈里发职位的前提,也是其得以持续的前提,依据经文的普遍性,一旦丧失这些条件,哈里发职位便随之终止,因此此人不得继续留任。这便是该条款“a”项的证据。
“Never will succeed such a nation that makes a woman their leader” (reported by Al-Bukhari from Abu Bakrah), his words included the ruling, so as long as the person is a leader, he could not be a woman; so if a man who was a ruler became a woman, due to any reason, then he would have lost this condition and it would be obligatory to remove him immediately. In the same manner, when Allah (swt) said. “O you who have believed, obey Allah and obey the Messenger (pbuh) and those in authority among you.” (TMQ 4:59), His (swt) words “Among you” next to “those in authority” clearly means that the person of authority must be an adherent of Islam as long as he is a person of authority. So if the person of authority became someone not from amongst us, in other words, became a disbeliever, then this characteristic which the Quran stipulated for the person of authority would be lost - the loss of the condition of being Muslim - at which point he becomes removed from this position of authority since it is not correct for him to be a person of authority while he is not from amongst us, in other words, not a Muslim. And the same applies to all the texts which have been related in regards to the conditions of the Khalifah; they are comprehensive texts which encompass the perpetual characteristics that are necessary for the one described, which indicates that they are conditions of continuation and not simply conditions for taking the position alone. Based upon that, the conditions for the contracting of the Khilafah are also the conditions for removing him, since their presence is a condition for the contracting of the Khilafah, and a condition for its continuation due to the generality of the text, and their loss means the loss of its continuation, and so it is prohibited for the person to remain in their position. This is the proof for paragraph “a” of the article.
其证据在于:哈里发的契约是围绕其履行职责而订立的;因此,如果他无力履行所授权的职责,那么就有义务将他罢免,因为他实际上已如同不存在一般。此外,由于他无法执行作为哈里发被委托的事务,宗教事务和穆斯林的利益便会被搁置,而这是必须消除的祸害,只有通过罢免他、以他人取代,才能消除。在这种情况下,罢免他就成为必须。应当知道,这并不与某个特定原因相关联;相反,任何导致他无力执行其职务的事情,都会使其罢免成为必要。如果某事并未使他无力履职,那么他就不会被罢免。因此,不能说失去身体的肢体就必然导致罢免或不导致罢免,同样,也不能说他患上某种特定疾病就必然导致罢免或不导致罢免。这是因为对此根本没有任何经文依据;相反,伊斯兰教法的规定是:无法执行所受委托之职务者,无论其无能的原因是什么,都必然导致罢免。这一规定并非专门针对哈里发,而是普遍适用于每一位受委托执行某项职务的人,无论他是被任命为统治者,如省长,还是被任命为雇员,如部门经理;其无能都必然导致罢免。
As for paragraph “b”, its evidence is that the contract of the Khilafah is over the execution of its duties; so if he becomes incapable to execute what he was contracted upon, it becomes obligatory to remove him since he has become like one who in reality is not there. Additionally, due to his inability to execute the actions which are commissioned to him as Khalifah, the issues of the Deen and the interests of the Muslims would be suspended, and this is an evil that must be removed, and it cannot be removed except by his removal so as to be replaced by someone else. His removal in this situation would become mandatory. It should be known that this is not linked to a specific reason; rather anything which afflicted him leading to his incapacity in executing his actions necessitates his removal. If it does not make him incapable, then he is not removed, and for this reason it cannot be said that losing limbs from his body necessitates removal or not, in the same way, it cannot be said that if he is afflicted by a specific illness, it necessitates his removal or not. This is since there is no text regarding this at all; rather the Shari’ah rule is that the one incapable of executing the actions which they have been commissioned for necessitates his removal, whatever the reason for this incapacity. This is not specific for the Khalifah, rather it is general and applies to everyone who is commissioned to an action, irrespective of whether he was appointed as a ruler such as a governor or as an employee such as a department manager; his incapacity necessitates his removal.
“c”段的证据与“b”段的证据相同。这是因为哈里发所被委派执行的行为,其无能力有两种类型:实际无能力和法律上的无能力。实际无能力是指他在身体上无能为力,也就是失去了执行这些行为的身体能力,这正是“b”段所讨论的内容。法律上的无能力是指他在身体上能够执行这些行为,但他无法自由地行动以承担这些行为,因此实际无能力的规定同样适用于他,因为他由于不能自主地处理事务,而无法承担由自己委派给他的、需要执行的行为,于是他就如同不在场者一样;为此,必须将他罢免。这种情况有两种:第一种是被囚禁,第二种是被强制控制。
The proof for paragraph “c” is the same as the proof for paragraph “b”. That is because the incapacity to execute the actions that have been commissioned to him as the Khalifah is of two types: literal incapacity and legal incapacity. Literal incapacity is when he is physically incapable, in other words, the loss of the physical capability to execute the actions, and this is what was discussed in paragraph “b”. Legal incapacity is when he is physically able to execute the actions, but he is incapable of freely acting to undertake the actions, and so the rule of literal incapacity would apply to him, since he is unable to undertake the execution of the actions which have been commissioned to him by himself, due to his incapability of freely acting in the affairs by himself, and so he becomes like the one who is absent; for this reason, it is necessary to remove him. This has two situations: the first is being confined, and the second is being overpowered.
至于被囚禁的情况,是指他的某个助手控制了他,全权掌控各项事务,并阻止他处理这些事务,而掌控者实际在处理哈里发职位的事务。因此,在这种情况下,哈里发被视同于被囚禁且被禁止自由发言的人。由于哈里发的契约只针对哈里发本人而成立,所以必须由哈里发亲自处理哈里发事务。这种对他的囚禁或其助手的全面掌控,意味着他已丧失执行所托付职责的能力;因此,他就如同缺席者一样,必须被罢免。然而,这种情况需要加以评估:如果仍有希望解除控制他的人的影响,打破对他的囚禁,那么罢免就予以延后;如果囚禁无法打破,则将他罢免。
As for the situation of confinement, it is when someone from his assistants takes control over him, and takes full control of implementing the issues while preventing him from dealing with them, and the one in control is the one who deals with the position of the Khilafah, and so the Khalifah in this situation is considered to be like the one who is confined and is prevented from freely speaking. Since the contract of the Khilafah only proceeds upon the person of the Khalifah, and ,therefore, it is obligatory to attend to the Khilafah himself, this confinement over him or the full control of his assistants means that he has lost the ability to execute the actions that have been commissioned to him; accordingly, he has become like the one who is absent and must be removed. However, this situation will be evaluated; if there was some hope that the influence of the one who took control over the Khalifah could be removed and that his confinement could be broken, then his removal is delayed; if the confinement is not broken, then he is removed.
至于被压制的情况,比如他成为压制他的敌人的俘虏,无法自我解救,那么他因无法处理穆斯林的事务,就会被剥夺所授予的领导契约。无论敌人是异教徒还是叛乱的穆斯林,情况都是如此。在这种情况下,全体乌玛都有义务通过战斗或支付赎金来营救他;如果没有希望实现这一点,那么,若他是被异教徒俘虏,他将立即被废黜。然而,若他是被叛乱者俘虏,则需要视情况而定:如果叛乱者中有一位伊玛目,并且他们对收回哈里发已不抱希望,那么他当即被废黜;如果叛乱者中没有伊玛目,则他被视为处于被囚禁的状态,换言之,人们将延缓一段时间,如果他的囚禁仍未结束,他就会被废黜。
As for the situation of being overpowered, such as when he becomes a prisoner in the hand of the overpowering enemy and is unable to liberate himself from them, then he is prevented from the contract of the leadership given to him due to his incapability of looking into the affairs of the Muslims. This is the case whether the enemy was from amongst the disbelievers or rebellious Muslims. In this situation, it is obligatory upon all the Ummah to save him either through fighting or paying a ransom, and if there was no hope of this happening, then if he was a prisoner in the hands of the disbelievers, he would be removed immediately. If, however, he was a prisoner of the rebels, the situation would be evaluated; if they had an Imam, and they lost hope in recovering the Khalifah, then he would be removed at the time, and if they did not have an Imam, then he would be considered as the one who is in the situation of confinement, in other words, they would delay for a period, and if his imprisonment was not ended, he would be removed.
这些是三段内容以及整体的证据,它们都是哈里发职位条件的证据。因此,同样地,有能力履行所托付的职责也是一项条件。所以,他若无力履行所被托付的职责,就意味着失去这项条件。然而,应当注意的是,某些条件的丧失会使他立即脱离哈里发职位,换言之,立即使契约失效;而另一些条件的丧失并不会使他脱离哈里发职位,但会要求将其罢免。叛教、完全疯癫,以及成为敌人手中的俘虏且无望获释,这三种情况会使他脱离哈里发职位,即便没有对其罢免作出裁定,他也已立即自行罢免。因此,服从他已不再是义务,他的命令不再执行,他与哈里发之间的契约也随之失效。
These are the proofs for the three paragraphs and in totality, they are the proofs for the conditions of the Khilafah. So, in the same manner, the ability to carry out what has been commissioned to him is a condition. Thus, his incapacity to carry out what he has been commissioned to do entails the loss of this condition. However, it should be noticed that the loss of some of these conditions remove him from the Khilafah, in other words, annul the contract instantly, and the loss of some of them does not remove him from the Khilafah but would mandate his removal. The three situations of apostasy from Islam, being completely mad and becoming a physical prisoner in the hands of the disbelievers with no hope of releasing him, remove him from the Khilafah and he has deposed himself immediately even if his removal was not ruled upon. Therefore, it would mean that it is not obligatory to obey him, and his orders are not implemented and the contract of the Khilafah with him is annulled.
至于如果他的公正品格因明显的罪行而受损,或他改变性别成为女性或性别不明确的人,或他患上暂时性的精神错乱,或他实际上无法履行哈里发职责,或他受其顾问中的某个个人或团体的影响而被束缚,后者全面掌控事务的执行,或他成为人身上的囚犯并期望能获得释放,或他受制于控制他的不信道者;在这七种情况下,罢免他是必要的,然而,除非经由法官的判决,否则不得罢免他。在这七种情况下的每一种中,都有义务服从他并执行他的命令,直到罢免他的命令被发布;这是因为这些情况中没有任何一种会自动导致哈里发契约的失效,而是有赖于法官的判决。 那些丧失后会导致他被罢免哈里发职位的条件,与那些丧失后不会使他被罢免、而只是表明他应当被罢免的条件,二者的区别在于:若某些条件丧失后会使契约从根本上和本质上无效,即它们属于契约本身或是契约的支柱之一,那么在这种情况下契约便是无效的。因为如果这些条件在订立哈里发契约时不存在,契约就会无效,也不会成立;如果它们在哈里发期间出现,契约同样无效,并且作废。例如伊斯兰教信仰的条件、理智健全的条件,以及个人独立行使职责的能力等条件,便属于此类。 至于那些条件,其缺失不会使合同无效,而是其根本依然合法,只是从其附属属性上使其无效,因为它不涉及合同本身,也不涉及合同的某一支柱,而是涉及附着于合同的某一属性。在这种情况下,合同并非无效,而是存在缺陷。因此,如果这些条件在订立哈里发合同时都不具备,那么哈里发仍然成立,但它是有缺陷的,其撤销需依赖法官的裁决。同样,如果这些条件在哈里发任期内出现了问题,那么合同便成为有缺陷的,但它不会自行失效,其撤销同样需依赖法官的裁决。例如男性、公正等条件,以及与之类似的条件,皆属此类。由此说明,可以得出以下区别:一种是哈里发的条件发生变化,从而使其被罢免于哈里发之位;另一种是条件发生变化,但并不使其被罢免,而只是使其具备了被罢免的资格。
As for if his just character is damaged by the appearance of clear sin, or changing his sex to female or someone whose gender is not clear, or if he became afflicted by temporary madness, or he became literally incapable of carrying out the Khilafah, or he is confined through being influenced by an individual or group from his advisors who take full control of executing the affairs, or he becomes a physical prisoner with the hope of being able to be liberated, or he falls under the influence of the disbelievers who control him; in these seven circumstances, it is obligatory for him to be removed, however, he is not removed except by a judge’s verdict. In all of these seven circumstances, it is obligatory to obey him and execute his orders until the order to remove him is issued; this is because none of these situations results in the automatic annulment of the contract of the Khilafah but rather relies upon the verdict of a judge. The difference between the conditions which if lost result in his removal from the Khilafah and those conditions whose loss does not remove him from the Khilafah but rather mean that he is deserving of being removed, is that those conditions whose loss makes the contract invalid from its origin and quality, in that they return to the contract or are one of its pillars, then the contract would be invalid in this case since if they were not present at the time of the contracting of the Khilafah, then the contract would be invalid and would not have been concluded. If they appear during the period of the Khilafah, the contract would be invalid, and would be void as well. This would occur with conditions such as the condition of Islam, sanity and the capability to carry out the actions individually. As for the conditions whose loss does not make the contract invalid, but rather its basis remains legitimate, but it makes it invalid from its properties, since it does not return to the contract itself, nor to one of its pillars, but rather to a property attached to it. In this case, the contract is not invalid but rather is imperfect. So if all these conditions were not present at the time of contracting the Khilafah, the Khilafah is contracted but it would be imperfect and its annulment would rely upon the verdict of a judge. In the same manner, if they appear during the period of the Khilafah, then the contract would become imperfect, but it would not void itself. Rather, its annulment would rely upon the verdict of a judge. Examples of this would be like the condition of being male, just and whatever is similar. It is from this explanation, that the difference between the changing of the condition of the Khalifah which removes him from the Khilafah, and the changing of condition which does not remove him from the Khilafah but rather makes him deserving of being removed has been arrived at.