7.3 委任代理人时所需具备的条件
7.3 The conditions required in the appointing of the Delegated Assistant
任命授权助手需要两个条件:第一是授予他全面监管之权,第二是使他成为代理人。因此,哈里发应当对他说:"我将属于我的事务委托给你,由你代我执行",或其他包含全面监管与授权之意的同义措辞。如果任命不是基于这些条件,他便不能成为穆阿维恩(助手),也不会享有穆阿维恩所应有的职权,直到其任命依这些条件而作出为止。
The appointing of the delegated assistant requires two conditions: The first is that He is given general supervision and the second is that He is a deputy. Therefore, the Khaleefah should say to him: ‘I assign to you what is to me so as to perform on my behalf,’ or any other words to that effect which include general supervision and deputation. If the assignment is not on these grounds, He would not become a Mu’awin and He would not enjoy the mandatory powers of Mu’awin until his appointment were to be made on these grounds.
证据在于辅臣的实际职能,即代理哈里发。在此语境下,代理是一种契约('Aqd),而契约只有通过明确的言辞才能成立。因此,任命辅臣的条件是,任命须以使其成为哈里发代理人的措辞进行。此外,辅臣的实质在于拥有哈里发在治理中所享有的全部必要权力。因此,任命必须具有普遍性,即必须包含表明事务具有全面考虑的措辞。换言之,任命中应包含表明辅臣享有治理所需全部权力的措辞。例如,对他说:“我把我的职权托付给你,让你代我行事”,或说:“我任命你为瓦齐尔,依靠你代我行事”,或类似的话。然而,若给予他全面的权限,却不说明“代我”,则意味着成为王储(Wilayat ul-'Ahd),而非瓦齐尔(Wizara)的契约,而王储之位是无效的,因此这样的契约也是无效的。如果任命仅限于代理,而未明确提及其普遍性,那么这一代理在普遍性或特定性、执行或委托方面就会变得模糊不清,据此,瓦齐尔之职也不成立。如果哈里发还对他说:“代我处理司法事务,或治安、教育等事务”,那么瓦齐尔之职同样不成立,他也不是被授权的辅臣。这是因为,任命受托辅臣时,必须使用能够表明辅臣实质的言辞或措辞,即代理哈里发并拥有其必要权力。 换言之,要使对受托助手的"维齐尔"(Wizara)合约得以成立,其条款应当包含两项条件:即总体授权与代理授权。如果条款没有明确涵盖这两项条件,则该受托助手不会被授予"维齐尔"之职。由于任命助手属于"麸葛"(Mubah)事务,因此哈里发可以任命一名或多名助手。如果哈里发任命了多于一名穆阿温(Mu'awin),那么他们每人都将被赋予哈里发所拥有的同样的总体权限。哈里发不得任命两名共同分享同一总体监管权的穆阿温,因为统治权(Wilayah)是单一的。因此,如果他这样做了,那么对二人的任命都是不允许的,且无效,因为这属于任命一位长官(Ameer),而长官只能是一个人。这是因为真主的使者ﷺ说:
The evidence for this is the reality of the assistant’s function, which is deputyship of the Khaleefah. Deputisation, in this context, is a contract (‘Aqd), and contracts will not be valid except through explicit words. Therefore, it is conditional in appointing the assistant that this appointment is carried out in terms that make of Him a deputy to the Khaleefah. Furthermore, the reality of the assistant is that He possesses all the mandatory powers, which the Khaleefah enjoys in ruling. Hence, the appointment must be general in everything, i.e. it must include a term that indicates the general consideration of matters. In other words, appointment should include a term that indicates that the assistant enjoys all the mandatory powers of ruling. This is done by saying to Him for example; “ I assigned to you what is to me so as to act on my behalf ”, or to say “I took you as a Wazir depending on your action on behalf of me”, or the like. However, giving Him the general consideration without stating ‘on behalf of me’ means to become an heir apparent (Wilayat ul- ’Ahd) not a contract of Wizara, and the heir apparent (Wilayat ul-’Ahd) post is invalid, so such a contract would be invalid as well. If the assignment was limited to deputisation, without explicitly mentioning its general consideration, then it would become an ambiguous deputisation in terms of generality or specification, execution or delegation and accordingly the Wizara would not be convened. If the Khaleefah also said to him, “represent me in judicial matters, or in the matters of policing, education or the like”, the Wizara would not be convened and He would not be a delegated assistant. This is because it is necessary in appointing the delegated assistant to use words or terms that indicate the reality of the assistant, which is the deputyship of the Khaleefah and the possession of his mandatory powers. In other words, in order that the contract of the Wizara be convened for the delegated assistant, it should include a term that indicates two conditions; the general delegation and the deputisation. If the term did not clearly cover these two conditions, the Wizara would not be convened to the delegated assistant. Since the assignment of the assistants is one of the Mubah matters, then the Khaleefah is allowed to appoint one or more assistants. If the Khaleefah appointed more than one Mu’awin, then each of them would be given the same general consideration that the Khaleefah has. It would not be allowed for the Khaleefah to appoint two Mu’awins who would share collectively the same general supervision, since the Wilayah of ruling is singular. Therefore, if He did so, then the assignment of both would not be allowed and void, for it is an appointment of an Ameer and this could only be to one individual. This is because the Messenger of Allah (pbuh) said,
“让他们从自己人中选出一人。”他ﷺ还说:
“Let them appoint one from among themselves.” He (pbuh) also said:
“在没有任命其中一人为他们的埃米尔的情况下。”因此,这种单独的任命是埃马拉(Imara)有效性的一个条件。
“Without appointing one of them as an Ameer on them.” This singular appointment is therefore a condition in the validity of the Imara.