Supported Decision-Making Service

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

The Human Rights Center for People with Disabilitis

Procedure

Like the secular courts, the Sharia courts also greatly rely on medical reports while examining

guardianship applications. However, welfare officers' reports and legal representation by counsel

on behalf of the legal adviser to the Welfare Ministry are used much less frequently. In recent years

said practice underwent changes in several courts. For instance, in the Sharia court in Jaffa, welfare

reports are used in most cases and the position of counsel on behalf of the legal adviser is obtained.

Jaffa is also exceptional in that the appointment orders which are given in Arabic are translated into

Hebrew and are transferred to the Guardian General for monitoring purposes.

Before the guardian appointment order is given, the court is obligated to meet the person for

whom a guardian is about to be appointed. The person must be brought to court to enable the

Qadi to see whether the person can express an opinion, how much they understand, what they

think about having a guardian, etc. Sometimes, the Qadi visits the person in their home for said

purpose. Failure to meet the person before an appointment order is given constitutes cause for the

revocation of the appointment order by the Sharia Court of Appeals.

The mandatory presence of the person in the hearing was reaffirmed in an appeal from 1995

(Sharia 15/95 (dated July 11, 1995) where it was held that a person had a natural right to know

of the proceeding conducted in their matter particularly when the results of the proceeding may

violate their right to take action and make decisions in their affairs.

Since the duty to take care of persons with disabilities is mainly a religious duty, the appointed

guardian must be Muslim. However, a combination of the necessity principle in Islam (according

to which prohibited things should be permitted when necessary) coupled with the overarching

court principle of the person's best interests, makes it possible in exceptional cases to appoint a

guardian who is not Muslim. Another, more practical difficulty in the appointment of guardian

corporations approved by the Guardian General, is that said corporations do not have enough

Arabic speaking employees.

Following issuance of the appointment order

Following the appointment, the powers vested with the guardian are limited to the powers granted to

them by the court, including management of the person's benefits and maintenance. Any investment,

apartment acquisition or gifts given out of the person's funds must be approved by the court. In addition,

persons with intellectual disabilities may not be married without the Qadi's approval, whose duty is to

examine the genuine necessity of the marriage and society’s interest in it.

In the past, due to regulations promulgated by the British Mandate – judgments against minors,

incompetent persons and Waqf properties, were automatically transferred to the Sharia Court of

Appeals. Currently, the definition of the term "against" is in dispute. The interpretation given

to this term by the Sharia Court of Appeals in Israel is that all judgments in cases of minors,

incompetent persons and Waqf institutions should be automatically transferred to the scrutiny of

the court of appeals.

Information sources

Meeting with the Honorable Qadi Dr. Iyad Zahalka, Director General of the Sharia Courts

Meeting with the Honorable Qadi Muhammad Rashid Zabda, Qadi of the Jaffa Sharia Court

Conversation with Ms. Tami Sella, Supervision of Guardians Unit Managing Director

Oren Asman, Legal Capacity against Psychosocial Background in the Israel’s Courts, Sharia Courts and Rabbinical,

JD dissertation, November 2011, The Hebrew University