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By Professor Omar Hasan Kasule Sr.
Learning Objectives
- Definition of competence, ahliyyah
- Conditions of incompetence
- Legal guardianship, wilayah
UNIT SYNOPSIS
CONDITIONS OF COMPETENCE:
A legally competent person makes decisions and takes actions on his person and property and is responsible his actions of commission or omission. Actions cannot be valid without legal competence. Competence is not the same as capacity. The defining conditions of legal competence are intellect, 'aql; puberty, buloogh; knowledge, 'ilm; and civil liberty or freedom, hurriyat. The main condition is that of intellect. All the others depend on and support it.. No human action can be carried out well and correctly without using human intellect correctly.
RIGHTS AND OBLIGATIONS, huquq & wajibat
The fundamental rights represented by the five Purposes of the Law, maqasid al shari'at, cannot be denied on the basis of gender, age, sanity, disease, or legal incompetence. Their exercise is regulated by Law in cases of legal incompetence. Each of the 5 fundamental rights has rights and obligations. The obligations of the individuals vary and depend to a large extent on the legal competence. The different rights and obligations of males and females are not related to competence but to different roles in society. Legal competence is of two types: competence with regard to acquisition of rights, ahliyat al wujuub and competence with regard to execution of obligations, ahliyat al adaa. Both types can be full, ahliyyat kamilat, or deficient, ahliyyat naqisat.
PRIVILEDGES OF THE LEGALLY COMPETENT
The legally competent person has full rights regarding his person, nafs, and his wealth, maal. A legally competent adult must be able to fulfil commitments and obligations. He also acquires rights as a result of commitments and promises made to him. A legally competent adult is responsible for all his acts of commission or omission. He has obligations under the law that he has to fulfil. The obligations however vary. The law considers the age of 7 years as the age of discrimination, sinn al tamyiiz. Between the age of 7 and puberty and depending on the speed of development, a child may have intellectual competence to make correct decisions about some matters but no actions can be valid unless approved by the legal guardian. After the age of 7, the obligation of prayer is enforced though not with the same rigour in adults.
RESTRICTIONS ON THE LEGALLY INCOMPETENT
Impediments that exempt an adult from performance of obligatory duties, mawaniu al taklif, may be voluntary, mawaniu al taklif al ikhtiyariyat, or involuntary, mawaniu al taklif ghayr al ikhtiyariyah. The voluntary impediments to legal competence, mawaniu al taklif al ikhtiyariyat are also referred to as acquired, 'awaridh muktasabat are ignorance, jahal; intoxication, sikr; and jest, hazal. Involuntary impediments to legal competence, mawaniu al taklif ghayr al ikhtiyariyat are insanity, junoon, mental retardation, safah, loss of consciousness, ighma, infancy and childhood, sigar, terminal illness, maradh al mawt, forgetting, nisyaan & sahaw, absence of mind, ghaflat, sleep, nawm, menstruation, haidh, erors, khata, cercion, ikraah, and tling, safar
THE CONCEPT OF WILAYAT
Legal guardianship, wilayat, is legal authority given to a guardian, wali, to make and carry out decisions regarding the person, nafs, or wealth, maal of a legally incompetent person. The decisions of a guardian are binding.