Supported Decision-Making Service

Supported Decision-Making Service for Persons with Disabilities | Service Model

The Human Rights Center for People with Disabilitis

Guardianship in the Sharia Courts in Israel

The efforts to enlist supporters and participants from the Arab community to take part in Article

12 pilot were unsuccessful. Regretfully, the pilot did not include participants from the Arab

community. As part of the effort to expand Bizchut's activities in the Arab community and

increase awareness of the need to promote alternatives to guardianship, Bizchut conducted a

short study concerning guardianship procedures in the Sharia courts, which adjudicate the vast

majority of the cases involving the appointment of guardians to Muslims in Israel. The following

is a summary of said study.

Background

The judicial system of the state of Israel consists of secular courts and

religious courts that have

jurisdiction over specific issues. Legally, family courts and religious courts have jurisdiction to

declare persons as wards and to have guardians appointed for them. In practice, however, while for

Jews, guardianship is almost exclusively adjudicated by family courts and is consequently based

on the Legal Capacity and Guardianship Law, 5722-1962, for Muslims it is almost exclusively

adjudicated by Sharia courts. Therefore, changes in legislation and reforms promoted in areas

pertaining to the right to legal capacity and supported decision-making in the framework of Israeli

law do not directly impact the majority of the Muslim population in Israel. Given that Sharia law

and the proceedings in the Sharia courts are conducted in Arabic, and in view of the autonomy of

the Sharia courts in the Israeli judicial system, there is a considerable gap between the legal reality

experienced by the Jewish population and that experienced by the Muslim population in Israel.

In this schedule, we briefly provide some background and present the customary practice of the

Sharia courts in Israel in the area of guardianship. The purpose of this schedule is to provide

accessible information to persons with disabilities in the Muslim community and their family

members. This schedule is also intended as a means of familiarizing the public at large with

proceedings in the Sharia courts and helping to bridge the gaps between secular law and religious

Sharia law.

The Sharia court system in Israel

Eight Sharia courts operate in Israel: Acre, Nazareth, Haifa, Baka al-Garbiyeh, Taibe, Jaffa,

Jerusalem and Beer Sheva. A single court of appeals is located in Jerusalem. As of 2012, the courts

use computerized systems and it is estimated that since then and until 2016, 5,500 guardianship

orders were issued. Most of the guardianship appointment orders issued by Sharia courts are not

transferred to the Guardian General. Auxiliary units are currently being set up in the Sharia courts,

with the first one opened in the Jaffa Sharia Court.

Legal capacity under Sharia law

Sharia law draws a distinction between capacity for rights and obligations (passive capacity)

and capacity to perform legal actions (active capacity). Capacity for rights and obligations does

not depend on a person's age or intellectual abilities and is in fact the legal tool enabling them

to be entitled to benefits (such as national insurance) and obligations (such as the obligation to