11.9 柴俩姆法官的强制权力
11.9 The mandatory powers of the Mazaalim judge
伊斯兰教法上,法官(Qadhi al-Mazaalim,申诉法官)拥有强制性的权力,可以罢免任何统治者或公务人员,他也有权罢免哈里发。
The Qadhi al-Mazaalim has the mandatory power to remove any ruler or civil servant, and He also has the right to remove the Khaleefah.
卡迪·马兹拉里姆有权罢免统治者,因为统治者是通过一份称为委任合同的契约被任命的,这份契约也被称为任命合同(Taqleed)。哈里发拥有统治权(Wilayah),也拥有任命权,即委任,而任命只能通过明确的措辞进行。因此,罢免哈里发所任命的统治者即是终止该合同,哈里发无疑保留这一权利。这是因为先知ﷺ曾任命并罢免了众省长(Wulah),四大哈里发(Khulafaa’ Ar-Rashidoon)也曾任命并罢免省长;哈里发还可以将任命与罢免的权力授权给他所任命的人。然而,马兹拉里姆法庭无权代表哈里发罢免统治者,因为它并非代表哈里发进行任命与罢免,而是代表哈里发审理冤屈案件(Mazaalim)。因此,如果某位统治者留任其辖区是一种不公(Mazlema),法庭便有权消除该不公,即有权将该统治者罢免。所以,其罢免统治者的权力并非代表哈里发行使,而仅仅是为了消除不公。因此,法庭判定应予罢免的人便应被罢免,即使哈里发不同意该判决。这是因为罢免该统治者即是消除一项不公,而这适用于所有人,包括哈里发在内,因为法官的判决对所有人都有约束力。至于其罢免哈里发的权力,同样是通过旨在消除不公的判决实现的。因为如果哈里发处于必须将其罢免的情形,或处于因某种原因应当被罢免的境况,那么他继续留任便是一种不公。而审理冤屈案件的马兹拉里姆法庭负责裁决消除不公之事,因此它会下令将其罢免。 因此,由马扎利姆法院作出的、旨在罢免哈里发的判决,将是旨在消除一项不公(Mazlima)的判决。
The Qadhi al-Mazaalim has the right to remove the rulers, for the ruler is appointed by a contract, known as the contract of assignment which is also called the contract of appointment (Taqleed). The Khaleefah has the right of the Wilayah that is the ruling, and He has the right of appointment, which is the assignment, and the appointment can only be done with clear wording. Thus the removal of the ruler appointed by the Khaleefah would be a termination of that contract, and the Khaleefah undoubtedly reserves that right. This is because the Messenger of Allah (pbuh) appointed the Wulah and removed them. The Khulafaa’ Ar-Rashidoon also appointed the Wulah and removed them; the Khaleefah could also delegate to those whom He appointed the right to appoint and remove. However, the court of Mazaalim does not have the right to remove the rulers on behalf of the Khaleefah, for it does not act on his behalf in appointing and removal. it rather acts on his behalf in looking into the Mazaalim. So if the presence of that ruler in his Wilayah was a Mazlema, the court has the right to remove that Mazlema i.e. it has the right to remove that ruler from office. Therefore, its power to remove the ruler is not done on behalf of the Khaleefah, but merely to remove the Mazlema. So the one whom it judges to be removed should be removed, even if the Khaleefah does not agree with the judgement. This is because the removal of that ruler would be the removal of a Mazlema, and this applies to everyone, including the Khaleefah, for the judgement of the judge applies to everyone. As for its power to remove the Khaleefah, this would also be by a judgement aimed at removing a Mazlema. This is because if the Khaleefah were in a situation that necessitates his removal, or in a situation as a result of which He should be removed, then his stay in office would be a Mazlema. It is the court of Mazaalim that judges the removal of Mazaalim, so it would order his removal. Therefore, the judgement of the court of Mazaalim to remove the Khaleefah would be a judgement aimed at removing a Mazlema.