9.9 玛宰里姆法庭法官的任命与罢免
9.9 The appointment and dismissal of the judges of al-Mazalim
穆醒姆(马扎利姆)法官由哈里发或最高法官任命。这是因为穆醒姆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规定,而所有类型的法官都必须由哈里发任命。这一点得到了穆罕默德ﷺ先知行为的证实,因为他ﷺ曾任命法官。所有这些都证明,穆醒姆法官是由哈里发任命的,但如果哈里发在任命条款中作出了相应规定,最高法官也可以任命穆醒姆法官。 允许国家中心的不义行为主管法院(马哈卡特·穆扎立姆)只审理由哈里发、其助手和最高法官所产生的不义行为案件;而在各省(wilayat)设立的不义行为法院分院则审理由省长(wali)和其他国家雇员所产生的不义行为案件。哈里发有权赋予中心不义行为法院任免其所属各省分院穆醒姆法官的权力。
The judge of Mazalim is appointed by the Khalifah, or by the supreme judge. This is because the Mazalim is part of the judiciary, for they are the conveying of the Shariah 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's (PBUH) actions, for he (PBUH) used to appoint the judges. All this serves as evidence that it is the Khalifah who appoints the judge of Mazalim, yet the supreme judge could appoint the judge of Mazalim if the Khalifah made provisions for this in his appointment clause. It is allowed for the main court of unjust acts (mahkamat ul-Mathalim) in the centre of the State to examine only the Mazalim that occurred from the Khalifah, his assistants and the supreme judge; whilst the branches of the court of unjust acts in the wilayat examine the Mazalim occurring from the walis and the other State employees. The Khalifah has the right to give the central court of unjust acts the authority of appointment and removal of the Mazalim judges in the branch Mazalim courts that follow it in the wilayat. .
哈里发任命和罢免国家中央主要的马札立姆法庭(mahkamat ul-mathalim)成员。至于中央马札立姆法庭首席法官的罢免——即负责审查哈里发罢免问题的马札立姆法官——原则上应由哈里发罢免他,因为正如其他所有法官一样,任命他的权力也在哈里发手中。然而,如果在某一案件中将罢免法官的权力交由哈里发行使,这种权力可能导致禁止之事。在这种情况下,“通往禁止之事的手段也是禁止的”这一原则将适用。此类情形极有可能发生,这一可能性本身就足以适用该原则。
The Khalifah is the one that appoints and removes the members of the main mahkamat ul-mathalim in the centre of the State. As for the removal of the head of the central mahkamat ul-Mazalim, i.e. the Mazalim 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 haram. In such a situation the principle of "the means that leads to haram is haram" would apply. The strong likelihood of such a scenario arising is enough for applying this principle. .
这种情况是指:当有人对哈里发、其助手或其最高法官提起诉讼时(前提是哈里发被赋予了任免米热阿里姆法官的强制性权力)。因为如果将罢免米热阿里姆法官的强制性权力保留在哈里发手中,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。在这种情况下,罢免法官的这一强制性权力成为通向非法之事的手段,即在这种情况下将其保留在哈里发手中是非法的(ḥarām)。
This case means when a case is raised against the Khalifah or his assistants or his supreme judge (in case the Khalifah was given the mandatory power of appointing and removing the Mazalim judge). This is because keeping the mandatory power of removing the Mazalim 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, i.e. keeping it in the hand of the Khalifah in this case is haram. .
至于其余情况,规则依旧不变,即罢免马darim法官(Mazalim)的权力仍交由哈里发掌握,与任命他的权力一样。
As for the remaining cases, the rule remains as it is, i.e. the power of removing the Mazalim judge is left to the Khalifah just like his appointment.