Hashem N. Alsharif

Guardianship for People with Disabilities in Saudi Arabia

The American University

Washington College of Law

June 5, 2015

Disability rights are considered one of the most important rights nowadays. Many international organizations have passed laws and legislation in order to protect this vulnerable group. Saudi Arabia, as an Islamic state that applies the Sharia law, protects the rights of persons with disabilities through its laws. Saudi Arabia has signed and ratified the CRPD in 2008. However, many issues for persons with disabilities occur when it comes from a social perspective. This paper will examine some issues with regard to guardianship for people with disabilities in Saudi Arabia.

Article 12 - Equal recognition before the law1. States Parties reaffirm that persons with disabilities have the right to recognition

everywhere as persons before the law. 2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an

equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with

disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal

capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person,; are free of conflict of interest and undue influence,; are proportional and tailored to the person’s circumstances,; apply for the shortest time possible; and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.

Introduction

“Disability can be defined within the context of an interaction between the

functional decrease and the demands and conditions of the environment.” (Al-Gain & Al-

Abdulwahab, 2002) Another definition is given by the Labor and Workman Law of Saudi

Arabia that is persons with disability are people with lower legal or mental capacity that

does not allow them to achieve a goal. (Al-Jadid, 2013)1 In the Qur’an, the use of the

word disability does not exist, yet the Qur’an refers to persons with disabilities as

‘disadvantaged people’ (Al-Aoufi, Al-Zyoud, & Shahminan, 2012). A previous study

conducted by Bazna and Hatap revealed that the concept of disability does not exit in the

1 The author has translated this definition; thus, the exact meaning might be lost.

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Qur’an; indeed, when they searched for the words disability and its synonyms, there were

no outcomes for that search (2005).

Islam has protected the rights of persons with disabilities since the Prophet

Mohammed was sent in the year 632 AD. The Qur’an (Allah’s words recited by the

Prophet) reveals in its verses real-world examples on the correct treatment of persons

with disabilities (Bazna & Hatap, 2005). For example, the Prophet was sitting with very

highly powered people in Mecca in order to invite them to Islam, and a blind man

interrupted the Prophet seeking some answers about Islam (Bazna & Hatap, 2005).

However, “the Prophet frowned and turned away from the blind man,” because he- the

blind man- had interrupted a very important moment- that is inviting very powerful group

of people to Islam (Bazna & Hatap, 2005, p. 13). Thereafter, ten verses2 of the Qur’an

were revealed teaching Muslims about how much it is important to treat persons with

disabilities equally to those who are not (Bazna & Hatap, 2005, p. 13). Hence, even

though it is the Prophet who acted inasmuch, Allah has protected the right for persons

with disabilities to education. Furthermore, Islam protects the rights of orphans (yateem)

in many examples. The Prophet said: “ ‘I and the one who looks after a yateem will be

like this in Paradise,’ holding out his middle and index fingers and separating them only

2 “He frowned and turned away because the blind man approached him! Yet for all thou

didst know, [O, Muhammad], he might perhaps have grown in purity, or have been

reminded [of the truth], and helped by this reminder. Now as for him who believes

himself to be self-sufficient–to him didst thou give thy whole attention, although thou art

not accountable for his failure to attain to purity; but as for him who came unto thee full

of eagerness and in awe [of God]–him didst thou disregard!” (80.1-10)

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slightly” (Bazna & Hatab, 2005, p. 21). For Muslims, it is the ultimate goal is to be with

the Prophet in Paradise, so legal guardians who adopt orphans have a very high

motivation to protect and care for orphans. Also, the third Muslim leader, Omar Ibn Al-

Khattab, order the construction of a house close to the mosque for a father with a blind

son because the father found it difficult for his son to go pray in the mosque from a long

distance (Al-Aoufi, Al-Zyoud, & Shahminan, 2012). Lastly, during the second Islamic

state, “the first care home for intellectually disabled individuals” was established as well

as the first hospital which accommodated the intellectually disabled as part of its

services” (Al-Aoufi, Al-Zyoud, & Shahminan, 2012, p. 206). Hence, Saudi Arabia- as an

Islamic state- acknowledged the rights for persons with disabilities before signing or

ratifying any international treaty; however, the core issue herein is the applicability of the

laws that protect persons with disabilities.

Saudis’ population with functional disabilities is approximately 3.73% (Al-Gain

& Al-Abdulwahab, 2002). In a different study, the number is 4% of the whole Saudis

population, an estimated 720,000 (Abdou, 2014). In addition, Abanumy, Al-Badi, and

Mayhew claim that the numbers of persons with disabilities might increase every year by

5% (2005). Hence, disability is a major issue in Saudi Arabia, and thus it is essential that

persons with disabilities have the same rights as other people in accordance with both

Saudi laws and United Nations’ treaties.

By the same token, there are many issues when conducting research regarding

disability issues in Saudi Arabia, one of which is a cultural issue. According to Al-Jadid,

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Saudis do not feel comfortable talking about family members who are disabled, thus not

contributing to research studies about persons with disabilities (2013). Saudis’ perception

about disability “includes helplessness, continuing dependence, being home-bound, low

quality of life, and deficiency of productivity” (Al-Jadid, 2013, p. 455). Furthermore, data

related to disabilities in Saudi Arabia by the Ministry of Health through its annual reports

are not quite reliable because, “most of the specialized organizations become more

sensitive in reporting the statistics on disabled persons due to security reasons, and it was

noticed that the reported data are vastly underestimated, due to poor reporting” (Al-Jadid,

2013, p. 456). Therefore, it is clear that Saudi family structure plays a critical part in a

host of disability issues in Saudi Arabia.

Hence, this paper will focus on one issue for disabled persons in Saudi Arabia that

is their right to recognition everywhere as persons before the law and practicing their

legal capacity as implanted by Article 12 of the Convention on the Rights of Persons with

Disabilities.

Causes for Disabilities in Saudi Arabia

The increasing numbers of persons with disabilities in Saudi Arabia is caused by a

number of reasons, two of which are consanguineous marriages and car accidents

(Abdou, 2014; Al-Gain & Al-Abdulwahab, 2002; Al-Jadid, 2013). First, consanguineous

marriages rates are quite high in Saudi Arabia (Abdou, 2014; Al-Gain & Al-Abdulwahab,

2002; Al-Jadid, 2013; Al-Abdulkareem & Ballal, 1998). A previous study by Sebai in

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1985 conducted in a rural area reported that 65% out of 109 marriages are

consanguineous marriages.3 Moreover, the number of consanguineous marriages in the

Al-Abdulkareem and Ballal study4 was 52% out of 1307 married Saudi citizens (1998).

They also say that although the percentage is lower, the rate is higher; indeed, the rate is

higher than other countries and the gulf reign (1998). As a precaution, the government of

Saudi Arabia recently requires engaged couples to complete a blood test before marriage

to examine the possibility of producing children with diseases. Also, society might move

to limiting or banning consanguineous marriages as an alternative precaution, but this

solution might be inapplicable because consanguineous marriages are “due to close

family marriage and to cultural beliefs” (Abdou, 2014, p. 31). Additionally, Saudis,

according to studies, lack knowledge of the potential danger from such close marriages.

According to Al-Gain and Al-Abdulwahab, “the awareness of inborn errors of

metabolism among parents is very low . . . [and] over 50% of parents, in response to a

questionnaire, had no knowledge of the causes of their children’s diseases (2002, p. 1).

Second, “road traffic accidents . . . [is one of] the major causes of mortality,

hospitalization, and chronic disability in Saudi Arabia” (Al-Jadid, 2013, p. 455).

According to the Ministry of Interior of the Kingdom of Saudi Arabia, the car accident

rate jumped by 27% between the years 2000 and 2011 (Nelson et al., 2014). The

3 As cited in Al-Abdulkareem & Ballal, 1998

4 The Al-Abdulkareem and Ballal study was conducted in the Province of Dammam,

which has a high population rate, and is open to all races, ethnicities, and nationalities.

Thus, the numbers would most likely be greater should rural areas of the Kingdom be

included.

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inapplicability of Saudi traffic laws might be one reason for such an increase. “Limited

studies show that few passengers use seatbelts in moving vehicles, and even fewer use

“child restraint systems” for their children” (Nelson et al., 2014, p. 960). This study is

another example showing that Saudis have little knowledge of how to help reduce the

number of persons with disabilities in the Kingdom. Al-Jadid argues that car accidents

are considered one main cause of disabilities (2013). Hence, only if Saudis were more

knowledgeable about some of the negative consequences of traffic accidents as well as

consanguineous marriages the number of persons with disabilities in Saudi Arabia might

decrease.

On January 24, 2008, Saudi Arabia ratified two of the most important United

Nations treaties dealing with persons with disabilities; the Convention on the Rights of

Persons with Disabilities (CRPD) and its Optional Protocol (CRPD-OP). Before ratifying

both the CRPD and its Protocol, persons with disabilities in Saudi Arabia had the right to

live normally with recognition as a normal person before the law. Saudi Arabia is based

on Islamic Sharia jurisprudence that gives a large emphasis to human rights issues (Al-

Jadid, 2013). “Being an Islamic country that applies its religious constitution, and where

people with disabilities human rights are emphasized, Saudi Arabia provides these people

a life of dignity through the use of social welfare means to allow them to adapt to society

social life, to the environment and to all the dimensions of life” (Abdou, 2014). The

Kingdom of Saudi Arabia applies Sharia law, which is based totally on Islamic

principles. In Saudi Arabia, there is no constitutional law- as it is interpreted in other

countries- because it is believed that the Qur’an is the constitution. As an alternative,

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Saudi Arabia has the Basic Law of Governance that is the highest law source in the

Kingdom (Search, 2015). In accordance with the Basic Law of Governance, any treaty

Saudi Arabia signs and ratifies that does not conflict with Islamic principles is considered

as a domestic law (Search, 2015). To put that into perspective, the CRPD and its optional

protocol can come to Saudi courts as a defense for cases involving persons with

disabilities; indeed, a ratified treaty pre-empts a domestic law should they conflict.

The Saudi Arabian Family Structure Analysis

Saudi Arabia has a unique family structure system that follows the most known

rules by the majority of the Kingdom’s tribes. According to Fatani, Saudi Arabian,

“family structure is patriarchal and hierarchical (by gender and age) in accordance with

the structure of tribal heritage” (2008, p. 50). In other words, the oldest man in the family

is the guardian for all family members. For example, the father has the power over his

own family, and when the father dies, the power, “is transferred to the eldest son”

(Fatani, 2008, p. 50). Also, when there is no a close family member who can be the

guardian, a legal guardian takes the place (Fatani, 2008). It is essential to highlight that

this perception of guardianship in the Saudi family structure does not require a person to

be intellectually disabled in order to be put under the oldest male’s observation. In the

case of those who are mentally disabled, it might be even harder to free themselves from

the Saudi family structure.

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Based on the Saudi family structure, a number of issues occur, specifically, issues

related to receiving the best medical care and to saving the disabled person’s money.

First, the Saudi family structure requires all family members to get the consent from their

guardian when visiting psychiatric institutions or doctors. For disabled women, the issue

is even worse because even if a disabled woman has the consent from the guardian, she

will not be able to meet her doctors alone, as women are not yet allowed to drive in Saudi

Arabia. Article 12 of the Convention on the Right of Persons with Disabilities states that,

“State Parties shall ensure that all measures that relate to the exercise of legal capacity

provide for appropriate and effective safeguards to prevent abuse in accordance with

international human rights law.” Legal capacity is deprived from a person when that

person cannot practice his or her full rights. According to Alharbi, in accordance with the

Islamic law, women “have the right to hold property and make contracts identical to

those of men” (2011, p. 166). However, the Saudi family structure and its norms are what

cause some of these issues.

Second, guardians might affect the disabled person in two ways. Guardians-

especially legal guardians- might use their authority to spend the intellectually disabled

person’s money in a way that may not benefit the disabled person. Alharbi argues that it

is illegal- by both Saudi laws and the Islamic law- in the case of orphans to spend their

money in a way that benefit them financially (2011). Additionally, Fatani (2008) claims

that low financial resources are also a barrier to women seeking medicine that cannot be

given by their guardians; granted, according to Al-Jadid, the medical budget for

intellectually disabled parsons has increased after 2008 (2013). Also, based on the Saudi

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family structure, women especially cannot live independently as they must depend on

their guardians financially (Fatani, 2008) notwithstanding their ability to work without

proper education and other related issues. Hence, it is important to have effective

oversight of guardians’ actions as well as allowing intellectually disabled persons to live

independently. According to Ahmed, working is a fundamental right for disabled persons

because working allows disabled persons not to rely on their guardians, as well as

allowing them to engage in society that will benefit them ultimately (2015). To sum up,

based on these limited circumstances and examples the Saudi family structure does not

always facilitate guardians who fully assist disabled persons.

By the same token, women in some circumstances might be guardians for their

children should children have no fathers or the father is not capable of taking care of the

child. Islam rejects the fact that a child might be fatherless, and all children shall have

parents (Fatani, 2008; Mora, Nasri, & Merrick, 2001). Indeed, adoption is an option for

children who do not have a member to be their guardian (Mora, Nasri, & Merrick, 2001).

Thus, it can be seen that the Saudi family system under this notion has met what the

CRPD aimed for. The main purpose of Article 12 of the CRPD is to allow persons with

intellectual disability to live independently, and acknowledging the right to parents for

children at this stage helps the disabled child. However, the main issue is that the

guardianship system in Saudi families does not end; indeed, Fatani argues that it is very

hard for disabled persons- especially women- to escape from being under guardians as

guardians control all their choices and decisions (2008). According to Al-Aoufi, et al.,

“guardianship ceases once the individual can be held accountable for their own decision-

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making ability” (2012, p. 208). Hence, guardianship for persons with disabilities should

either end or be changed to the decision-making theory at the point in which the disabled

person is capable of making his or her own decisions.

To sum up the Saudi family analysis, it can be seen that there is a lot of emphasis

on the need to oversee guardians’ of persons with disabilities in Saudi Arabia. However,

based on the Saudi family structure, it can be concluded that persons with intellectual

disability will inevitably be under some kind of guardianship.

Institutionalization in Saudi Arabia

Institutionalization in Saudi Arabia, according to many experts, occurs without

proper mechanism for persons with intellectual disability. According to the Ministry of

Health main website, Saudi Arabia has: 16 psychiatric hospitals; psychiatric institutions

(with more than 3003 beds capacity); more than 40 Psychiatric clinics; three institutions

for drug treatment; in 2008-09, more than 436,000 visits; 612 psychiatric doctors; and,

909 social workers. Five percent of Saudis are disabled (Abdou, 2014); however, this past

statistic does not identify what type of disability is more common. Hence, a Saudi

disabled person might be optimistic after looking at the statistics from the Ministry of

Health about how many services are given to intellectually disabled persons. However, in

reality, the situation inside institutions is not that different than those globally. According

to Althamena, drugs, social family structures, life difficulties, domestic violence, car

accidents, and high divorce rates might be some of the major causes for being an

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intellectually disabled person in Saudi Arabia, and one percent of each city’s population

is persons with intellectual disability, 10% of which are so acute that they cannot be

cured (2015). According to Qureshi, Al-Habeeb, and Koenig, persons with acute

intellectual disability are institutionalized (2013). According to Al-Huzali, whose brother

is institutionalized in the most famous psychiatric hospital in Saudi Arabia, persons with

severe intellectual disability might be dangers to the community and their families

(Althamena, 2015). Hence, it can be concluded that institutionalization can be useful to a

very limited type of peoples whose illness cannot be cured and are dangerous to their

community. However, a plethora of issues occurred in institutionalization in Saudi

Arabia, and there is an immediate need to deinstitutionalizing a large number of persons

with disability.

First, one of the main issues in psychiatric institutions’ services is related to the

Saudi family structure as mentioned earlier in the paper. Dr. Al-Habeeb- the president of

all psychological health departments in Saudi Arabia- claims that the social structure of

the Saudi family as well as the lack of knowledge are the two major issues for persons

with intellectual disability after they leave psychiatric institutions (Althamena, 2015).

According to Althamena, women visit more psychiatric private clinics that do not require

patients to reveal their identity (2015). As mentioned earlier in the Saudi family structure

analysis, Saudis do not feel comfortable visiting psychiatric institutions, nor do they want

to reveal any information about a family member who is intellectually disabled.

Moreover, women cannot visit psychiatric institutions without the consent of their male

guardian because of how the Saudi family structure is shaped (Fatani, 2008). To put that

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into perspective, intellectually disabled women have to face two barriers: the social

norms about being an intellectually disabled women and the social family structure of not

moving freely.

Second, granted this past claim, the core issues are found inside the psychiatric

institutions. Although the Saudi government gives funding to psychiatric institutions,

Qureshi, Al-Habeeb, and Koenig believe that the Saudi government should provide

greater financial help to psychiatric institutions (2013). Al-Ahedeb claims that the

intellectually disabled persons are not fully protected by the Saudi government

(Althamena, 2015). He further claims that there is no official Mental Health system that

protects persons with intellectual disability in Saudi Arabia. However, just recently

(November 25, 2014) the government of Saudi Arabia passed new legislation, the Mental

Health Care Law that: 1) organizes and promotes health care for psychiatric patients; 2)

protects the rights for mentally ill persons; and, 3) devolves a new mechanism to treat

persons with intellectual disability in psychiatric treatment facilities (Search, 2015). This

new law criminalized a host of acts including treating psychiatric patients wrongly, and it

also punishes this act with up to one year imprisonment. Another issue that occurs inside

the psychiatric institutions is the lack of professionalization among workers. According to

Dr. Al-Khedar, psychiatric institutions lack experts and medical equipment (Althamena,

2015). Hence, the Saudi government should focus more on monitoring psychiatric

institutions in order to prevent such behaviors and issues.

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In addition to the previous two issues regarding institutionalization in Saudi

Arabia, the third issue is the overload capacity in institutions. According to Dr. Al-

Habeeb, Saudi psychiatric institutions have a capacity of more than 4,000 beds, not

including the new psychiatric institutions that are going to be built in the future

(Althamena, 2015). Saudis’ population with functional disabilities is approximately

3.73%. (Al-Gain & Al-Abdulwahab, 2002) Hence, the hospitals’ capacity cannot fulfill

the need of this group of people. According to Dr. Alharethy- a psychiatrist at Al Taif

psychiatric institution- on a regular basis, a psychiatric has to see up to 15 persons per

day (Althamena, 2015). Also, the manger of Al-Taif’s psychiatric institution, Dr. Al-

Amry, said that there are a number of intellectually disabled persons who have been at

the hospital for more than 15 years, and there is a long wait list for people who want to

use the psychiatric institutions’ services (Althamena, 2015). However, Dr. Al-Habeeb

claims that the overload capacity only occurred in major cities where the population is

higher, while in urban areas, psychiatric hospitals are using only part of their capacities

(Althamena, 2015). It can be concluded that the situations and services in psychiatric

institutions do not meet the highest standards and do not help persons with intellectual

disabilities. Hence, solutions, such as deinstitutionalization and others, should be applied

by the society and by the government.

Scholars have addressed some solutions for institutionalization. Some scholars

suggest providing persons with intellectual disabilities with more psychiatric clinics with

social workers and better mental health care providers (Althamena, 2015). As a result,

mentally disabled persons will not have to visit psychiatric institutions and deal with the

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bad services provided therein. Another solution is to allow social workers and doctors to

work side-by-side. Furthermore, some scholars believe that public awareness about

disability issues should be enhanced because part of the problem is linked to the social

structure in Saudi Arabia (Althamena, 2015). Finally, institutionalizing only severely ill

persons and deinstitutionalizing- with proper safeguards- those who can be treated living

among their family and general society is going to help mentally disabled persons.

However, according to Qureshi, Al-Habeeb, and Koenig, deinstitutionalization in a low-

income country, like Saudi Arabia, might not result “in a variety of outreach, vocational

and psychosocial rehabilitation programs, psych educational efforts, and diversified

housing programs” (2013, p. 1126). Hence, the government should consider increasing

funding in order to achieve these goals and solutions.

The Role of Guardians in Saudi Arabia

Guardians for persons with intellectual disability have many duties and

responsibilities regarding protecting the rights of disabled persons. Guardians are

required to aid persons with intellectual disabilities (Al-Ashqar, 2011; Alharbi, 2011).

That includes saving their money and investing it only when guardians are quite sure

about the results (Al-Ashqar, 2011). For example, guardians are “prohibited . . . from

wrongfully spending the orphan‘s wealth on himself” (Alharbi, 2011, p. 120).

“Guardianship is subject to a sense of duty, fairness and kindness” (Al-Aoufi, Al-Zyoud,

& Shahminan, 2012). Hence, this past example shows how much responsibility guardians

have in protecting the rights of an intellectually disabled person.

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For persons with intellectual disabilities, there are two types of liabilities: Wojoob

and Adaa (requires means rea) (Ahmed, 2015). Wojoob is the acknowledgement as a full

person before the law, and it automatically attaches to all persons who were born alive.

The Wojoob occur to all persons, and it has nothing to do with a person’s choices. The

Adaa, however, is the sole determination for the outcome of persons’ actions and talks.

For example, the Adaa liability measures the level of someone’s ability to think as a

reasonable person and if his or her actions were intentional. Any choice and action by a

reasonable person is measured by his Adaa liability. All actions are consisted of two

elements: actus rea and means rea. In the situation of a mentally disabled person, the

means rea element does not exist, thus resulting in an incomplete action or saying they

need the approval of his or her guardian (because the there is no Adaa liability). The

majority of Muslim scholars believe that an intellectually disabled person is indeed liable

depending of his or her level of knowledge (Ahmed, 2015). The next two sub-sections

will cover the role of guardians relating to marriages and crimes done by an intellectually

disabled person.

Guardians’ Role in Marriages:-

In accordance with Article 23 of the Convention on the Rights of Persons with

Disabilities, “State Parties shall take effective and appropriate measures to eliminate

discrimination against persons with disabilities in all matters relating to marriage.” It is

clear that the convention has recognized the importance of being in a family for persons

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with intellectual disability. As mentioned earlier in the paper, family plays a critical role

in helping persons with intellectual disabilities be part of the society. Thus, the right to a

family is also important in Islam. According to Al-Ashqar, persons with intellectual

disabilities are as capable of getting married as those who are not disabled (2011). n

intellectually disabled person with the consent of guardian can choose to marry (Al-

Ashqar, 2011). The first issue that has to be solved is why do persons with intellectual

disabilities have to ask for their guardians’ consent in order to get married? The answer is

that this consent5 should only be part of decision-making (Al-Ashqar, 2011).

There are a plethora of reasons why persons with intellectual disabilities should

be allowed to marry. First, persons with intellectual disabilities will benefit immediately

from marriages. For example, when a person with an intellectual disability gets married,

he or she will experience the feeling of love and being loved6 (Al-Ashqar, 2011). The

disabled person will feel that he or she is an equal part of society, thus allowing him or

her to accommodate and adjust into society immediately. Second, there are long-term

positive affects from allowing marriage. According to Al-Ashqar, a person with an

intellectual disability might get a benefit of getting married when he or she is unable to

care for him or herself (2011). Specifically, marriages can be useful to those who do not

have close family members to help them, thus creating a new family would benefit the

5 For some Muslim scholars, a woman can marry without the consent of her

guardian, but the majority (which Saudi Arabia follows) requires consent form the

male guardian even if the female has a full Adaa liability (normal person).

6 Since love relationships cannot be exposed without marriages in Islam.

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disabled person. Also, in the future, society’s perception about the intellectually disabled

persons will change.

Guardians’ Role in Criminal Offenses:-

Criminally, persons with intellectual disabilities cannot be found liable for their

actions and statements.7 There is no codified criminal law in Saudi Arabia yet. As an

alternative, Saudi Arabia has the Law of Criminal Procedure, in which major and basic

rules for criminal offenses are mentioned (Search, 2015). The basic elements of any

crime are the actus reus and the mens rea (Morad, et al., 2001). Any action that does not

include both elements is considered an incomplete crime, and thus the person is not liable

for the consequences of their action. On the other hand, guardians are found guilty by the

Sharia law for actions done by mentally disabled persons who are under the guardian’s

supervision. However, the liability takes a different shape.

First, in crimes that involve hurting other persons, such as murder or any type of

assault, the guardian is liable financially in a civil case (Morad, et al., 2001). For

example, if a totally mentally disabled person murdered another person, the disabled

person cannot face the death penalty since they cannot form the requisite mens rea.

Nonetheless, his or her guardian8 can face a civil case requiring them to pay an amount of

money to the victim’s family. Second, in crimes that involve property or money, a person

7 Talks crimes, include unlawful accusations of others, defamation, and contracting.

8 Especially when the guardian acted negligently, by, for example, proving the

disabled person with guns or teaching him or her how to hurt people.

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with intellectual disabilities is liable (Ahmed, 2015; Morad, et al., 2001). Based on the

loss the disabled person made, an indemnity should be paid from the disabled’s own

money in order to teach him or her (Ahmed, 2015; Morad, et al., 2001). However, even

though the government normally mandates some prison time for thefts, neither a person

with an intellectual disability nor his or her guardian can be imprisoned for such crimes

due to the lack of a mens rea.

Conclusion

The main purpose of article 12 of the CRPD is allowing intellectually disabled

persons to live independently, and acknowledging the rights for children at this stage

helps parents of disabled children. However, Fatani argues that the main issue is that the

guardianship system in Saudi families does not end because is very hard for disabled

persons- especially women- to escape from being under guardians as guardians control all

their choices and decisions (2008). “Guardianship ceases once the individual can be held

accountable” (Al-Aoufi, et al., 2012). However, based on the Saudi family structure, this

fact might not be easy to apply. Hence, it can be concluded that applying Article 12 of the

Convention on the Rights of Persons with Disabilities will be quite difficult in real word

situations in the Kingdom of Saudi Arabia.

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