Religious Minorities and the Right to Citizenship: The Example of Jewish Tunisians

2018-09-13    |   

Religious Minorities and the Right to Citizenship: The Example of Jewish Tunisians

Non-discrimination on the basis of a person’s religious affiliation is one of the most important principles that the post-independence Tunisian state has relied upon to define the relationship of the state to its citizens and residents. The Jewish minority in Tunisia has been affected by this approach as the state has developed. For example, the minority has been integrated into state institutions through the framework of judicial unification: Tunisia’s Jewish courts have been abolished, and the civil status of Tunisian Jews placed under the purview of the judicial judiciary, in accordance with positive law.[1] Similarly, all data referring to religion has been completely removed from all civil status documents. In addition there have been practical steps with symbolic effects: 11 judges who had presided over Jewish courts were appointed as judges in regular courts, where they are on equal footing with the other judges. There is also the election of Andre Barouch and Albert Basis.[2] These two figures from the Jewish minority are considered emblems of the nationalist movement, and were members of the National Constituent Assembly.[3] Barouch had been appointed a minister in the first governments of the post-independence Tunisian state. The state’s approach to non-discrimination was explicitly affirmed in the Constitution of the First Tunisian Republic (1956-2011). Article 6 of that constitution asserted that “all citizens are equal before the law.” The 2014 Constitution of the Second Republic went on to affirm this in an even clearer way by stipulating in Article 2 that “Tunisia is a civil state based on the values of citizenship.”


At the same time, the post-independence state remained committed to the notion that “Islam is the religion of the state,” as well as to the notion that “the state is the guardian of religion.” On this point, the state succeeded in imposing a particular view of the state’s relationship with religion, establishing Islam, the religion of the majority of Tunisian citizens, as the official religion of the state, while at the same time charging the state with the duty of fostering the religions of all its citizens and inhabitants – but without discriminating in any way between its citizens on the basis of religion. The state’s success in this matter is even more significant given that adherents of Islam make up the overwhelming majority of the state’s citizens, an estimated 98%. Despite the historical roots of the Jewish community, whose members are among Tunisia’s early inhabitants, they number no more than 1,500 citizens now as a result of their migration abroad.[4]


Following the Tunisian state’s establishment of the Committee on Individual Liberties and Equality, and its reform of institutions whose goal is to champion human rights, including “non-discrimination on religious grounds,” it seems that we should examine the situation of Tunisian citizens of the Jewish faith – and the extent to which it actually accords with the state’s policy of non-discrimination.


First it is necessary to point out that the Committee on Rights and Freedoms’ report defines religious discrimination based on legal texts, which it characterizes as archaic (the majority of them date back to the colonial period and are in the Code of Obligations and Contracts). The report notes that those laws have been implicitly replicated in subsequent legislation and that it is therefore necessary to rid the code of them.[5] However, close scrutiny of the Tunisian legal system, looking at the practices it has adopted for example, reveals that there are other forms of religious discrimination which the report does not note.


Legislation in Post-1956 Tunisia Enacts Unjustified Religious Distinctions

Article 74 of the Tunisian Constitution stipulates that candidates for president of the republic must be adherents of the Islamic faith. This condition is justified on the basis that the majority of Tunisian citizens are Muslim, and that Islam is the official state religion. Yet absent from these justifications is a practical consideration of how this kind of condition might infringe the rights of non-Muslim citizens, particularly those of the Jewish faith. For instance there is the fact that most of the elites of the Jewish minority have emigrated abroad, and those who remain in Tunisia have withdrawn from participating in politics. Yet a true belief in the right to full citizenship should require an acknowledgement that conditions like this one establish discrimination between citizens, and violates the values of the Tunisian republic.


Meanwhile, closer investigation reveals another form of discrimination against Jewish Tunisian citizens, one that affects their daily lives.


The Right of the State to Foster Religious Institutions

The Tunisian Constitution mandates that the state should foster religion. In practical terms, this means the state has a duty to care for and manage religious institutions. In the context of Islam, this duty is manifested in a law stipulating that the state should guarantee the sanctity of mosques.[6][7] The law also charges the state with the responsibility for paying for mosques’ maintenance, stipulating that the state must “provide for mosque expenses associated with water, electricity, furnishing, and maintenance within the state budget.”[8] These provisions also have administrative manifestations, through the creation of bureaus of religious affairs that fall under the Ministry of Religious Affairs, and whose mission is to supervise:


“Proper functioning of mosques and other religious sites, including ongoing construction, maintenance, and preservation projects, and

Technical and administrative structures for the various classes and categories of mosques that fall under their purview.”[9]


Likewise, Article 11 of the law regulating cemeteries states that “local communities are responsible for the maintenance of cemeteries that fall under their purview, as well as for registering them in accordance with the legal statutes regarding real estate registration, and for guarding them.”[10] Practically speaking, the fact that the state bears responsibility for maintaining mosques guarantees that the majority of mosques remain open for religious use. Similarly, the fact that local communities are responsible for preserving and maintaining [Islamic] cemeteries ensures that basic measures at least are taken for their protection.


By contrast, responsibility for Jewish religious institutions is governed by a 1958 law regulating Jewish religious practices.[11] This law places responsibility “for regulating synagogues and administering their affairs, for administering burial sites, and for holding funerals, to the Israelite religious associations.”[12] The associations referred to here are elected bodies directed by administrative councils, which are in turn elected from a general assembly of all Jewish Tunisians over twenty years of age.[13][14] These associations’ resources come from the management of their properties and any donations they receive.


The state’s recognition of the rights of Tunisian Jews to democratically administer their religious institutions might appear positive – a matter of respect for the community’s individuality and religious convictions, and a way to shield them from outside interference. At the same time, however, this stance is interlinked with a weakening of public responsibility for the religious institutions of Tunisian Jews, which in turn violates the principle of equality between them and other citizens. This infringement has actual effects – for example, the destruction of some Jewish religious sites.


It follows then, that in order to establish equality between citizens, and in light of the state’s obligation to foster religion, the government should be responsible for maintaining and preserving Jewish temples and cemeteries. In order to protect their sanctity this should be carried out in coordination with the associations that currently manage them. This state patronage should signal a form of positive discrimination in favor of Jewish holy places – particularly for Jewish cemetaries. These sites contain the remains of citizens whose families have migrated abroad; for the deceased, only the state of their homeland remains to care for them.


On this subject, it is worth mentioning that in 2015, Othman Battikh, then the Minister for Religious Affairs, pledged to restore the Jewish temple in Moknine – and did not fulfill his promise. On the same note, in 2008 the municipality of the same town, when cleaning the Jewish cemetery, destroyed a significant number of its tombs, and did not assume responsibility for the cost of repairing them after. All of this confirms the state’s neglect concerning the Jewish minority when it comes to respecting its holy places. Rectifying this matter requires legislative reform, mandating that the state budget provide for Jewish holy sites, in order to address the discrimination from which these sites now suffer. This should also be supported by the recognition of Jewish Tunisians’ rights to study their religion in state schools.


The Right to Religious Education in State Schools

Article 53 of Tunisia’s framework law on education and instruction in schools enshrines the values of freedom of belief to a significant extent.[15] It specifies that there should be social studies and humanities instruction, including religious lessons, that “enable learners to attain knowledge that develops their critical faculties, and helps them to understand the organization and development of societies in economic, social, political, and cultural terms.” And it does so without mentioning the religion of the majority of the Tunisian people, i.e. Islam.


But on the level of the law’s implementation through ministerial directives, the idea of respective religious diversity in Tunisian society is completely absent. Mandatory Islamic education has been established at the primary levels of education, and Islamic thought in the secondary levels. This means not only that there is no authorization to teach non-Muslims their religion in state educational institutions, but also that non-Muslim students are obligated to study Islam instead.


Jewish students are also deprived of their natural rights to a school vacation on their holy days. In many cases, there are exams during these periods, meaning one of two things happens: either they comply with state educational institutions and violate the rules of celebrating the Sabbath and religious holidays, or they boycott exams and lessons that fall on those days. The former situation represents an infringement of their religious convictions, and forces them to violate the teachings of the social and religious group that they live among, while the latter directly violates their right to education.[16]


The resulting pressure that Jewish students and pupils face might be one of the causes of missing out on school, especially in Djerba where a significant number of Tunisian Jews still live; yet this is ignored.[17] In this case, institutional reform is required in order to restore civil rights – in particular full respect for the right to practice religious rituals – to Jewish citizens.


Discriminatory Practices Against Jewish Citizens

While it is significant that the government has always silently practiced institutional discrimination against the Jews, it should not be forgotten that popular discourse is not compatible with the values of respecting the beliefs of others, either.


Government Practice of Religious Discrimination in Professional Contexts


The first article of Law 1 of 2004, which regulates national service, specifies that its purpose is “to prepare the citizen to defend the territory of the nation and participate in the country’s comprehensive development, and contribute to the spread of peace in the world.”[18] The second article obligates every “citizen who has reached the age of twenty” to perform this service. In other words, the law itself does not discriminate between citizens when it comes to performing national service. However, the Tunisian administrative authority overseeing enlistment has adopted the practice of refusing to enlist Jewish citizens. When confronted about their justification for this practice, they claim it is because they do not provide kosher food suitable for Jewish citizens. Behind closed doors, however, this exclusion is justified based on a fear that Jewish citizens will spy on the national army.


In addition to being insulting, this practice has detrimental effects on the citizens affected by it. The law subjects them to legal consequences as a result of not having performed military duty. On a day to day basis, this leads to unwarranted harassment from security forces for something they are not at fault for, and have no way of avoiding. This violation against citizenship rights also deprives Jewish citizens from working in public positions because they cannot produce administrative documents affirming that they have completed their military duties.


Racist Speech: a Practice that Must be Remedied

Generally speaking, Tunisian society is distinguished by an overall sense of harmony between its citizens, based on a long history of national coexistence. But [the rise of Zionism] and the subsequent Arab-Israeli conflict, as well as the gradual emergence of a culture of intolerance have led increasingly to anti-Jewish speech in certain quarters. It should be pointed out that the Committee on Rights and Freedoms has addressed this phenomenon by proposing that the infringement of belief should be criminalized, with the goal of protecting minority beliefs. With all due appreciation for this approach, it has been pointed out that spreading the values of citizenship and tolerance cannot be achieved by amending the law alone. Rather, it requires cultural reform that highlights the importance of the Jewish presence in the Tunisian national culture and social fabric. Although some aspects of such efforts have appeared in the past, they remain limited.


This article is an edited translation from Arabic.


[1] Also known as the Jewish Rabbinical Courts, these were designated to oversee the personal status of Jews in Tunisia. Their jurisdiction and functions were established by an order on September 3, 1972.

[2] Both ran for election in the lists of the National Front, which included the Constitutional Liberal Party, the Tunisian General Worker’s Union, the Tunisian Union for Manufacturing and Trade, and the National Union of Tunisian Farmers. The first stood for election in the capital, Tunis, and the second in the district on the outskirts of Tunis.

[3] The membership of the National Constituent Assembly comprised 98 delegates, based on their activist or militant history and chosen from the leaders of the national leadership of the national movement that belonged to the National Front.

[4] In 1921, the number of Jewish Tunisians was 47,711, representing 2.3% of the general population of the Tunisian Eyalet, as it was known at the time. At the point of independence in 1956, the population had reached 57,792, or 1.5% of the total population. These numbers and their development reflect demographic growth that was outweighed by waves of immigration among Tunisian Jews abroad. Today there are 1,500 Jews in Tunisia, most of them living on the island of Djerba, which has great historical and religious significance.

[5] See for example page 35 of the report, which states the following: “a review of national laws reveals that all of these laws date to the colonial period, and sought to emphasize a distinction between Muslims and non-Muslim inhabitants, as for example in the Code of Obligations and Contracts, where many contracts can be found that are based on religious distinctions. It should be noted here that the freedom to form contracts is among the individual freedoms that cannot be abridged or abrogated on religious conditions, or otherwise affect freedom of conscience… from a legal perspective, we note that many of these statutes have been implicitly replicated, such as the ban on the sale of illicit items between Muslims, which violates a law passed on 18 February 1998 regarding the regulation of trade in alcoholic beverages.”

[6] Law 34 of 1988, passed on May 3, 1988, concerning mosques. It was published in the national gazette of the Tunisian Republic on May 6, 1988 (No. 31).

[7] See Article 4.

[8] See Article 9.

[9] Order 2923 of 2014, issued August 5, 2014, concerning the regulation of the administrative organization and the procedures for running regional authorities for religious affairs and their functions.

[10] Law 12 of 1997, passed February 25, 1997, concerning cemeteries and burial places.

[11] Law 58 passed July 11, 1958, concerning the regulation of Jewish religious rights.

[12] See Article 2.

[13] “Israelite” is the literal expression used in the legal text, meant to indicate descent from the people of Israel, not used in the sense of Israeli nationality.

[14] See Article 5.

[15] Framework Law Number 80 of 2002, passed July 23, 2002, concerning education and instruction.

[16] Article 292 of the Commercial and Civil Procedure Code forbidding acts against Jews states that “the Sabbath, Rosh Hashanah and Yom Kippur, and the first and last two days of of Sukkot and Purim, and the final two days of Passover and Saba’ut are holy days and religious occasions, permitted as breaks for Jewish students, who should not be required to take exams on these days.”

[17] Nearly 1,000 Jewish Tunisian citizens live on Djerba. They are distinguished by their social and economic identity, and throughout the world they are considered an exemplary Jewish community on account of their commitment and religious culture.

[18] Law 1 of 2004, passed January 14, 2004, concerning national service.

Share the article

Mapped through:

Articles, Inequalities, Discrimination and Marginalisation, Tunisia

For Your Comments

Your email address will not be published. Required fields are marked *