11.8 法官的任命与罢免
11.8 The appointment and the removal of the judges
负责申冤案件的法官(قاضي المظالم)由哈里发任命,或由大法官(قاضي القضاة)任命。他的罢免、问责、训诫或调任,由哈里发执行,或者在哈里发授予其强制性权力的情况下,由申冤法庭(محكمة المظالم)执行。这是因为申冤是哈里发专属的权力(ولاية)。因此,申冤长官(والي المظالم)的任命必须由哈里发作出。此外,申冤属于司法的组成部分,因为它是以强制力宣布伊斯兰教法的裁决。法官必须由哈里发任命;这一点已由先知ﷺ的行为所证实,因为他ﷺ曾任命法官。所有这些都证明,申冤法官由哈里发任命,但如果哈里发在其任命条款中作出了相关规定,大法官也可以任命申冤法官。
The Qadhi al-Mazaalim is appointed by the Khaleefah, or by the Qadhi al-Qudhah. His removal, accounting, reprimanding or transfer, is carried out by the Khaleefah, or by the court of Mazaalim - if the Khaleefah gave it such mandatory power. This is because the Mazaalim is wilayah that is exclusive to the Khaleefah. Thus the appointment of the Waali of Mazaalim must be by the Khaleefah. Besides, the Mazaalim are part of the judiciary, for they are the pronouncement of the Shari’ah rule by way of compulsion. The judge must be appointed by the Khaleefah; a matter that is confirmed by the Messenger of Allah’s actions, for He (pbuh) used to appoint the judges. All this serves as evidence that it is the Khaleefah who appoints the judge of Mazaalim, yet the Qadhi al-Qudhah could appoint the Qadhi al-Mazaalim if the Khaleefah made provisions for this in his appointment clause.
罢免穆扎林法官(Qadhi al-Mazaalim)原则上应是哈里发的权利,因为任命他的权力属于哈里发。然而,如果哈里发正在审理针对哈里发本人、穆阿温·塔夫维德(Muawin Tafweedh)或大法官(Qadhi al-Qudhah)提出的案件,他就无权罢免该法官。这基于“通往haram的手段也是haram”的原则。 先知ﷺ曾亲自主持穆扎林的司法事务,从未有记载表明他曾任命某人全面主管穆扎林事务,即授予其普遍的穆拉耶(Wilayah)。四位正统哈里发也从未任命他人主管穆扎林。阿里曾亲自主持穆扎林事务,并审理过多起穆扎林案件。阿卜杜勒-马立克·本·马尔万(‘Abdul-Malik Ibnu Marwan)出任哈里发后,固定一天专门受理穆扎林,只听取诉讼而不进行调查。若出现问题,需要有约束力的判决来平息冤屈,他便将案件交给自己的法官阿布·伊德里斯·阿兹迪(Abu Idriss Al-Azadi)。阿布·伊德里斯作为法官,受理哈里发阿卜杜勒-马立克转交给他的穆扎林案件。信士的长官欧麦尔·本·阿卜杜勒-阿齐兹(‘Umar Ibnu Abdel-Aziz,愿真主怜悯他)即位后,亲自处理穆扎林案件,并制止了伍麦叶家族的不义行为。 阿拔斯王朝中期,哈里发开始将穆扎林案件委派给专职法官。从那时起,穆扎林司法便与哈里发分离;而在此之前,哈里发始终亲自执行这一职能。 因此,哈里发保留亲自审理穆扎林案件的权利,并可以任命穆扎林法官,也可以罢免他并以另一名法官取代。所以哈里发这样做是被允许的,即属于Mubah(允许)的行为。
The removal of the Qadhi al-Mazaalim should, in principle, be the right of the Khaleefah, as it is He who has the right to appoint him. However, He has no right to remove Him if He was investigating a case submitted against the Khaleefah, the Muawin Tafweedh or the Qadhi al-Qudhah. This is based on the principle of; The Means to Haram is Haram”. The Messenger of Allah (pbuh) used to personally take charge of the judiciary of Mazaalim and it has not been reported that He ever appointed a judge of Mazaalim on a general capacity i.e. giving Him a general Wilayah over the Mazaalim. The four of Khulafaa’ Ar-Rashidoon never appointed anyone over the Mazaalim. Ali used to personally be in charge of the Mazaalim; and He looked into several cases of Mazaalim. When ‘Abdul-Malik Ibnu Marwan became Khaleefah He fixed a particular day for the Mazaalim, where He would hold hearings without going into the investigations. If a problem arose and He needed a binding judgement to settle the Mazlema, He would refer it to his judge Abu Idriss Al-Azadi. Abu Idriss would then be the one who looked into the Mazaalim, for He was a judge and He dealt with the Mazaalim that the Khaleefah ‘Abdul-Malik would refer to him. When the Ameer of the believers ‘Umar Ibnu Abdel-Aziz (Rahim Allah) came, He himself dealt with the cases of Mazaalim, and put a halt to the Mazaalim of Banu Umayyah. Midway through the Abbasi (Abbasid) era, the Khulafaa’ used to delegate the cases of Mazaalim to a special judge. Since that date the judiciary of Mazaalim became separate from the Khaleefah, while before that the Khaleefah himself always carried it out. Therefore, the Khaleefah reserves the right to look into the Mazaalim himself, and He is allowed to appoint a judge of Mazaalim, and to remove Him and replace Him with another judge, thus it is permitted for the Khaleefah to do so i.e. it is a Mubah action.
同样,由哈里发来追究玛萨alim法官的责任,他可以训斥该法官并将其罢免。这是因为哈里发对玛萨alim事务负有责任,也对他为审理玛萨alim事务而代表自己任命的法官负有责任。哈里发可以授权(首席)玛萨alim法官,或授权卡迪·古都(Qadhi al-Qudhah),使其有权罢免玛萨alim法官、训斥、罢免或调任他。如果哈里发这样做了,那么他们就具有追究、问责和训斥玛萨alim法官的强制性权力。
It is also the Khaleefah who holds the judge of Mazaalim accountable, where He reprimands Him and removes him. This is because He is responsible for the Mazaalim and for the judge whom He appoints on his behalf to look into the Mazaalim. The Khaleefah is allowed to give the (head) Qadhi al-Mazaalim or to the Qadhi al-Qudhah the power to remove the Qadhi al-Mazaalim, reprimand, remove or transfer him. If He did so, they would have the mandatory power to remove, account and reprimand the Qadhi al-Mazaalim.
监察法官(Qadhi al-Mazaalim)的职位并不限于一人。哈里发可以根据需要任命若干名负责申冤案件的法官,人数多少不限。然而,在作出判决时,只能由一名法官做出裁决。不过,允许其他法官在审理过程中与其同坐,但他们只起协商作用,该法官没有义务采纳他们的意见。
The position of Qadhi al-Mazaalim is not restricted to one person. The Khaleefah is allowed to appoint a number of judges for the Mazaalim according to the need, no matter how many they were. However, when it comes to the judgement, only one judge can pass the judgement. Yet it is permitted for other judges to sit with Him during the court proceedings, but they would only have a consultative role, and He would not be obliged to consider their opinion.
这是因为哈里发有权指派一名或多名代理人代表他行事。然而,如果有数名穆扎林姆法官(Qaadi Mazaalim),他们所拥有的审理不公之事的强制性权力不可分割,因为他们每一位都有权审理不公之案。不过,哈里发可以将某位穆扎林姆法官限定于某一个省,或限定其审理某一类案件,因为他有权赋予穆扎林姆事务一般性的授权(Wilayah),也可以在愿意时赋予特定的授权。他还可以将授权赋予整个国家,或限定于某个特定地区或省份。至于穆扎林姆法官审理某案时应当独自审理,这是基于前面提到的原则:对同一案件由多名法官审理是被禁止的,而在同一地区有多名法官则是允许的。然而,允许其他穆扎林姆法官仅以咨询的身份与他一同坐堂。他没有义务采纳他们的意见,是否让他们同坐,由他自行决定,因为不应有人与法官同坐而分散其注意力,妨碍他审理已授权给他的案件。不过,他可以在退庭之后向他们咨询。
This is because the Khaleefah is permitted to appoint one or more deputies to act on his behalf. However, if there were several judges of Mazaalim, their mandatory power to look into the Mazaalim cannot be apportioned, for each one of them would have the right to look into the cases of Mazaalim. The Khaleefah is, however, allowed to confine a judge of Mazaalim to one province, or to confine Him to a certain type of cases, for He has the right to give a general Wilayah over the Mazaalim, or a specific Wilayah if He wished. He can also give a Wilayah over the whole of the State or confine it to a specific area or province. As for the fact that, when the judge of Mazaalim looks into a case, He should look into it on his own, this is because of what was mentioned earlier, that it is forbidden to have more than one judge looking into a particular case, while it is permitted to have more than one judge in the same area. However, it is permitted for other judges of Mazaalim to sit with Him in court in a consultative capacity only. He would not be obliged to consider their opinion, and it would be up to Him whether He wished them to sit with Him or not, for nobody should sit with the judge and distract Him while He looks into what has been confined to him. However, He could consult them once He retires from court.