9.5 法庭的组成
9.5 The formations of the tribunals
不允许由多于一名有权作出判决的法官组成一个审判庭;但是,允许一名或多名法官与他同在,不过他们没有判决的权力,而只能被咨询或发表意见,其意见对判决没有约束力。
It is not allowed for a tribunal to be formed of more than one judge that has the power to render judgement; it is however permitted for one or more judges to be present with him but they would not have the right to judge, but merely to be consulted or to voice an opinion, and their opinion would not be binding. .
这是因为安拉的使者ﷺ从未任命两名法官同时审理同一案件,而是每一件事务只任命一名法官。此外,司法是以强制执行的方式传达伊斯兰教法的律例,而关于穆斯林个人的教法律例不可有所不同,因为它是安拉的律例,而安拉的律例是唯一的。诚然,对它的理解可能有所不同,但就实践层面而言,关于穆斯林的律例仍然是唯一的,从不改变。当法官以强制执行的方式传达安拉对眼前案件的律例时,这种传达必须是唯一的,因为这是以强制力传达安拉的律例。这样,法官便是在执行安拉的律例,而从实践角度看,安拉的律例不会改变,即使对它的理解有所不同。因此,同一案件、即同一法庭中设置多名法官是被禁止的。至于国家层面,在同一地区设立两个分别受理各类案件的独立法庭是允许的,因为司法权是由哈里发授权的,它类似于代理职权,而代理职权允许多元并存,所以同一地区设立数名法官也是允许的。如果争议双方无法就应向哪个法庭提起诉讼、或由哪位法官审理其案件达成一致,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,因为原告是在寻求其权利,而这一权利优先于被告的权利。
This is because the Messenger of Allah (PBUH) never appointed two judges to deal with one matter, rather He (PBUH) appointed one judge for each matter. Besides, the judiciary is the conveying of the Shariah rule by way of enforcement, and the Shariah rule concerning the one Muslim 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. When the judge conveys the rule of Allah in the matter at hand by way of enforcement, this conveyance must be one, for it is the conveying of the rule of Allah by way of compulsion. Thus it would be acting upon the rule of Allah, and the rule of Allah 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 the same case, i.e. in the same 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 Khalifah, 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..