第八十六条
Article 86
muhtasib(监察官)有权为自己委任副手。这些副手应当具备muhtasib所要求的条件,他也可以把他们派往不同的地方。这些副手有权在其所被指派的地区,以及在其所被授权处理的事项上,履行hisbah(民间监督)的职责。
The Muhtasib has the right to appoint deputies for him. They should fulfil the requirements of the Muhtasib, and he is allowed to assign them to different places. Those deputies would have the power to carry out the duties of the Hisbah in the areas to which they have been assigned, and in the cases for which they have been delegated.
本条文所涉及的问题,取决于对穆哈塔西卜(Muhtasib)的任命是否包含为其指派代理人的权利,换言之,即委任他人的权利。这是指他由哈里发任命的情况。然而,如果任命是由最高法官作出的,则该条款必须先获得批准;此外,最高法官的任命必须包含一项条款,赋予他允许其所任命的法官再委派他人代行职务的权力,换言之,赋予他们设立副手的权利。如果最高法官不具备此种权力,那么他就无权批准此类委派,因而穆哈塔西卜也不得设立副手;换言之,他没有委派的权利。 法官代表自己委派他人的权力,无论是穆哈塔西卜、卡迪(法官)还是不义申诉法院(Madhalim)的法官,都不在法官本人手中,除非哈里发允许他这样做,或者招募法官以及允许被任命者委派他人的许可已授予司法总督,即最高法官。这是因为法官是被任命到司法体系中的,换言之,是某一特定类型的司法职务,即希斯巴(Hisbah)。因此,如果他没有被赋予委派的权利,即为自己任命副手的权利,那么他就不具备任命任何人的强制性权力。这同样适用于卡迪和不义申诉法院的法官,因为他们各自都依据任命条款被委任到司法职位上,除任命合同中有所提及外,他们不拥有其他权力,即无权任命法官。因此,除非这一点载于其任命合同之中,否则他无权指派副手代其履行希斯巴的职责。最高法官同样如此。
This article is restricted by whether the appointment of the Muhtasib included the right to appoint delegates for him; or in other words, the right to appoint others. This is if he had been appointed by the Khalifah. However, if the appointment was made by the Supreme Judge, the clause must be approved first, and in addition to this, the appointment of the Supreme Judge must include a clause that gives him power to allow the judges that he appoints to delegate others to act on their behalf, in other words, to give them the right to have deputies. If the Supreme Judge did not have such power, then he would not be in a position to approve such delegation, thus the Muhtasib would not be allowed to have deputies; in other words, he would not have the right to delegate. The power of the judge to delegate on his behalf, whether it be the Muhtasib, the Qadi (judge) or the judge of the Court of Injustices (Madhalim), is not in the hands of the judge unless the Khalifah allows him to do so or if the permission to recruit judges and to allow those appointed to delegate were given to the Governor of the Judiciary, in other words, the Supreme Judge. This is because the judge is appointed to the judiciary, in other words, a specific type of judiciary, which is the Hisbah. Therefore, if he were not given the right to delegate, in other words, the right to appoint a deputy for himself, he would not then possess the mandatory power to appoint anyone. This applies to the Qadi and the judge of the Court of Injustices (Madhalim), for each of them would be appointed to the judiciary according to the appointment clause, and they do not possess any other power, in other words, they do not have the power to appoint judges unless it was mentioned in the contract of their appointment. For this reason, he does not have the right to appoint deputies to perform the duties of Hisbah on his behalf, unless this was part of his contract. The same applies to the Supreme Judge.