Islamic Finance: Guardians have responsibilities

As the logical extension to our continuing discussion on contracts under Sharia, today we will review an important aspect called "wilayah" or guard-ianship and the role and responsibilities of a guard-ian towards his ward.

In a literal sense, "wilayah" means help or assistance. Sharia has permitted the appointment of a "wali" or one having wilayah or guardianship for a person on behalf of another in order to make certain dispositions allowable on behalf of the ward, without seeking his consent.

We learned the previous week that a person with "perfect capacity" can become a contracting party. Such a person does not need the help or assistance of a wali to do so.

However, there could be a need for wilayah or guardianship if a person does not hold "perfect capacity". This could be in a situation where the person is a minor or is mentally unable to perform as a contracting party.

Whilst the natural guardian for a minor is his father, we will confine our discussion on guardianship relating to the property of an orphaned minor, since it directly involves managing of property and financial matters.

The Sharia court appoints a person of credibility to look after the interests of his ward — an orphaned minor until he attains "perfect capacity". This type of guardianship is vast in nature and authority, compared with natural guardianship.

A person holding such guardianship is also empowered to dispose of property to the benefit of his ward.

A father can select a guardian for his minor children during his lifetime, as he will be in a better position to make a good judgement from amongst the circle of his relatives and friends. However, in case of his death without such an appointment, the guardianship will automatically be conferred upon the judge of a Sharia court.

It is the duty of the judge to appoint a Sharia executor for the minor offspring of a deceased person to look after their interests in the best possible manner and to dispose of their property as their representative.

A question that arises is if Sharia confers upon the judge the duty of assuming the guardianship of orphaned minors, why does he, in turn, pass on this important responsibility to a third person. This is due to the reason that it is not practically possible for a Sharia judge to effectively look after the interests of many "guardian-less orphans" on account of his multifarious responsibilities and activities. As such, the executor appointed by the judge is his substitute in this matter.

The powers granted by Sharia to a guardian or wali cannot be challenged by the ward upon attaining "perfect capacity".

Sharia has, therefore, set the following stringent conditions for the appointment of a guardian:

1) The guardian should be adult and sane, i.e. holding "perfect capacity". This is because if he is not able to manage his own affairs, how will he be able to take care of the interests of a minor which is a greater responsibility.

2) The guardian must be from the same religion as that of the ward. Therefore, a Muslim cannot be a guardian to a non-Muslim ward and vice versa.

3) Although not a condition but preferable from the Sharia standpoint, both the guardian and the ward should be followers of the same school of thought out of four such schools — Hanafi, Hanbli, Shafaei and Malaki. This is to eliminate any chance of dispute since these great scholars of Fiqh and Sharia have minor differences in setting parameters for guardianship.

4) A very important condition for a guardian is that he should be honest, pious and credible.

5) The guardian must be the guarantor of the state of his ward. This makes a lot of sense since a minor's entire state would be under his direct control and as such it should not be difficult for him to stand guarantor for the same.

The author is a senior manager at Dubai Islamic Bank