11.4 设立法庭
11.4 The forming of tribunal courts
禁止在一个法庭上由多于一名法官主持并拥有作出裁决的权力。允许一名或多名法官与其同在,但他们无权作出判决。他们出席是为了被咨询或发表意见,而他们的意见并不具有约束力。
It is forbidden to have more than one judge presiding over a tribunal and having power to render judgement. It is permitted for one or more judges to be present with Him but they would not have the right to judge. They attend so as to be consulted or to voice an opinion, and their opinion would not be binding.
这是因为,使者(愿主福安之)从未任命两位法官共同处理同一件事,而是为每一件事任命一位法官。此外,司法是以强制力宣示伊斯兰教法的裁决,而针对同一位穆斯林的教法裁决不能有所不同,因为它是安拉的裁决,而安拉的裁决只有一个。诚然,对它的理解可能有所不同,但就实践层面而言,对该穆斯林来说它是唯一的,且从不改变。在安拉看来,他的理解即是安拉的裁决,而任何其他理解,就其适用于他而言,都不是安拉(SWT)的裁决,尽管在他人看来它可能被视为教法裁决。他所采纳并依之行事的任何taqleed(效仿),就他而言都被视为安拉(SWT)的裁决,而任何其他taqleed则不适用于他。当法官以强制力宣示安拉在当前事件中的裁决时,这一宣示必须是唯一的,因为它是以强制力宣示安拉(SWT)的裁决。如此,便是依循安拉(SWT)的裁决行事,而从实践角度看,安拉(SWT)的裁决不会有所不同,即便理解可能有所不同。因此,设立一位以上的法官是被禁止的,因为安拉(SWT)的裁决不可能有所变化。这是就个别案件而言,即审判庭或法庭。至于国家层面,则允许在同一地区设立两个分别审理各类案件的法院,因为司法权是由哈里发委任的,它类似于代理职务,而代理职务是允许多元并存的,因此同一地区设立数位法官是允许的。 如果争议双方无法就应当将案件提交哪一个法庭,或由哪位法官审理达成一致,则原告的选择优先于被告的选择,案件将交由原告所选的法官审理,因为原告是在寻求自己的权利,而这一点优先于被告的考虑。
This is because the Messenger of Allah (pbuh) never appointed two judges to deal with one matter, rather He (pbuh) appointed one judge for one matter. Besides, the judiciary is the pronouncing of the Shari’ah rule by way of compulsion, and the Shari’ah rule concerning the same Muslim person cannot vary, for it is the rule of Allah, and the rule of Allah is one. It is true that its interpretation may vary, but concerning the Muslim from the practical side it remains one and it never varies. His interpretation would be the rule of Allah as far as He is concerned, and any other interpretation is not the rule of Allah (swt) that would apply to him, although in his opinion it is considered a Shari’ah rule. Whatever Taqleed (imitation) He adopts and acts upon is considered to be the rule of Allah (swt) as far as He is concerned, while any other Taqleed would not apply to him. When the judge pronounces the rule of Allah in the matter at hand by way of compulsion, this pronouncement must be one, for it is the pronouncement of the rule of Allah (swt) by way of compulsion. Thus it would be acting upon the rule of Allah (swt), and the rule of Allah (swt)from a practical point of view does not vary, even if the understanding does vary. Therefore, it is forbidden to have more than one judge, for it is impossible for the rule of Allah (swt) to vary. This is as far as the individual case is concerned, i.e. the tribunal or court. As for the country, it is permitted to have two separate courts dealing in all types of cases in one area, because the judiciary is delegated by the Khaleefah, so it is like the deputyship where plurality is permitted, thus it would be permitted to have several judges in one area. If the disputing parties could not agree on which tribunal they should take their case to or which judge should look into their case, the choice of the plaintiff would outweigh that of the defendant and the case would be given to the judge of his choice, as He would be seeking his right and this outweighs the defendant.