第88条
Article 88
国家不义申诉法院(Madhalim)的法官由哈里发或最高法官任命。对其的问责、纪律处分和罢免,由哈里发进行;若哈里发授权最高法官行使此项权力,则由最高法官进行。然而,在其审理针对哈里发、行政助理或最高法官的申诉(Madhlamah)期间,他不得被罢免;在这种情况下,罢免他的权力属于不义申诉法院(Madhalim)。
The judge of the Court of Injustices (Madhalim) is appointed by the Khalifah, or by the Supreme Judge. His accounting, discipline and removal are done by the Khalifah or by the Supreme Judge if the Khalifah had given him the powers to do so. However he cannot be removed during his investigation of a Madhlamah against the Khalifah, or the executive assistants, or the Supreme Judge; rather the power to remove him in these circumstances is for the Court of Injustice Acts (Madhalim).
Madhalim的法官由哈里发任命,或由最高法官任命。这是因为Madhalim属于司法体系的一部分,因为它们是以强制执行的方式传达伊斯兰教法的裁决,而所有类型的法官都必须由哈里发任命。先知穆罕默德ﷺ的行为证实了这一点,因为他过去任命法官,正如前文所述。所有这些意味着,Madhalim的法官由哈里发任命,但如果哈里发在其任命条款中作出了相关规定,最高法官也可以任命Madhalim的法官。国家中心的主要不义法庭(Mahkamat Al-Madhalim)只允许审理由哈里发、其助手和最高法官所造成的不义案件。然而,各省的不义法庭分庭则审理由总督和其他国家雇员所造成的不义案件。哈里发有权赋予中央不义法庭任命和罢免其管辖下各省分庭Madhalim法官的权力。
The judge of Madhalim is appointed by the Khalifah, or by the Supreme Judge. This is because the Madhalim is part of the judiciary, for they are the conveying of the Shari’ah rule by way of enforcement, and all the types of judges must be appointed by the Khalifah. This is confirmed by the Messenger of Allah (pbuh)’s actions since he used to appoint the judges as was explained previously. All this means that it is the Khalifah who appoints the judge of Madhalim, yet the Supreme Judge could appoint the judge of Madhalim if the Khalifah made provisions for this in his appointment clause. It is allowed for the main court of injustices (Mahkamat Al-Madhalim) in the centre of the State to examine only the Madhalim that occurred from the Khalifah, his assistants and the Supreme Judge. However, the branches of the court of injustices in the provinces examine the Madhalim that occur from the governors and the other State employees. The Khalifah has the right to give the Central Court of Injustices the authority of appointment and removal of the Madhalim judges in the branch Madhalim courts that come under its authority in the provinces.
哈里发任命和罢免国家中心的主要不公审理法庭(麦兹最高法院/马扎立姆法院)的成员。至于罢免中央不公法庭的首席法官——也就是负责审查对哈里发的罢免案的麦扎立姆法官——原则上应由哈里发有权罢免他,因为正如其他所有法官一样,任命他的权力也属于哈里发。然而,如果在某个案件中,将罢免法官的权力交给哈里发,那么这种权力就会导致被禁止之事。在这种情形下,原则是……
The Khalifah is the one that appoints and removes the members of the main court of injustices in the centre of the State. As for the removal of the head of the central court of injustices - in other words, the Madhalim judge responsible in examining the removal of the Khalifah - it should in principle be the right of the Khalifah to remove him, as it is he who has the right to appoint him like all the judges. However, it is possible, if the power of removing the judge were left to the Khalifah during a case, then this power would lead to something prohibited. In such a situation the principle of.
. )الوسيلة إلى الحرام حرام( .
. )الوسيلة إلى الحرام حرام( .
“通往被禁之事的手段,同样是被禁止的”,这一原则同样适用。
“the means to something forbidden is also forbidden” would apply.
这种情况很可能发生,这一点已足以适用此项原则。
The strong likelihood of such a scenario arising is enough for applying this principle.
这种情况是指针对哈里发、其助手或其首席法官提起诉讼的情形(假设哈里发被赋予了任免麦兹万(Madhalim)法官的强制性权力)。因为在这种情况下,若让哈里发掌握罢免麦兹万法官的强制性权力,就会影响法官的裁决,进而限制法官在认为必要时罢免哈里发或其助手的能力。此时,罢免法官的这一强制性权力是通向非法(Haram)的手段,换言之,在这种情况下将其交由哈里发掌握是被禁止的。
This situation is when there is a case against the Khalifah or his assistants or his Supreme Judge (in case the Khalifah was given the mandatory power of appointing and removing the Madhalim judge). This is because keeping the mandatory power of removing the Madhalim judge in the hands of the Khalifah in this case would influence the verdict by the judge and accordingly it would limit the capability of the judge to remove the Khalifah or his assistants if deemed necessary. This mandatory power of removing the judge in this case is a means for Haram, or in other words, leaving it in the hand of the Khalifah in this case is prohibited.
至于其余情形,规定依旧如此;也就是说,罢免马扎立姆法官的权力仍归哈里发所有,正如任命他的权力一样。
As for the remaining cases, the rule remains as it is; in other words, the power of removing the Madhalim judge is left to the Khalifah, just like his appointment.