The rights of Tunisian Jews in Tunisia

Commentary on a Court of Cassation ruling on the sale of Kosher meat

« The Israelite citizen is therefore free to follow the prescriptions of his religion, to practice it or not to practice it if he so wishes, to associate with his co-religionists for the management of worship and related interests, on the sole condition that he does not undermine public order.
Apart from this spiritual domain, nothing should distinguish the Jewish citizen from other citizens. He is a citizen like any other, no more, no less, subject to the same obligations and enjoying the same rights. »

In theory, all Tunisian citizens enjoy all rights and freedoms, without any discrimination based on religion. Numerous guarantees such as the principle of non-discrimination and equality before the law also apply to Tunisian Jews. However, in practice, particularly in the context of disputes that may arise when Jews exercise their rights, indirect discrimination is observed. This type of discrimination is characterized by the existence of laws which are discriminatory in content and which have a discriminatory effect when applied. Particularly in commercial transactions, we note from the judgment rendered by the Court of Cassation in case no. 6835 dated June 5, 2001 that the judge took no account of the rights of Tunisian Jews, nor of the specific texts governing their daily life linked to religious rites and practices.

According to the facts of the case, on January 28, 1999, economic control inspectors visited a butcher’s shop on Avenue de la Liberté in Tunis and found that the defendant was selling beef to the public at an illegal price. A record no. 433/99 was drawn up and forwarded to the Public Prosecutor’s Office at the Tunis Court of First Instance, which referred the accused to the criminal division to be prosecuted for price increases in accordance with the law of May 29, 1991 on prices and competition.

Before examining the Court’s judgment in the present case, it is necessary to recall the legal framework governing Tunisian Jews.

The Israelite faith is governed by Law no. 58-78 of July 11, 1958 on the regime of the Israelite faith, which regulates all aspects of the daily life of the Jewish minority. This law stipulates that the Tunis Israelite Community Council has been dissolved, and that it has been replaced by a provisional management committee for the Israelite faith, made up of members appointed by the Administration.

Under the terms of the law, this reform was a response to the need to “reform the system of Israelite worship in order to adapt it to the imperatives arising from independence and the profound reforms that have taken place in the country’s institutions”. This law “guarantees all citizens, without discrimination, equal rights and duties”.

Article 2 of the law on Israelite worship recognizes the right of Israelite religious associations to manage day-to-day affairs, and in particular to ensure:

• a) Organization and maintenance of synagogues;
• b) The service of ritual slaughter, matzah bread and kosher foodstuffs with the assistance of rabbis;
• c) Cultural assistance to members of their community;
• d) The organization of religious education.

Israelite religious associations play a consultative role by participating in decision-making, particularly in matters relating to the exercise of Israelite worship. They have the right to “give their opinion on all questions concerning the exercise of Jewish worship on which the Government deems it useful to consult them.”

At this point, we should recall the historical context of this law. Jews suffered discrimination under the “dhimmi” status. This meant being protected and paying two types of tax in return. This status was abolished with the “ahd al aman” reforms of the Husseinite Bey Mohamed Bey.

It should also be noted that the above-mentioned law seems obsolete, having been drawn up after independence and no longer meeting the requirements of Tunisian Jews or guaranteeing them effective protection.

This is clear from our commentary on the Court of Cassation ruling in which the judge ignored this law, thus marginalizing the rights of Tunisian Jews.

The applicant in the decision in question works in a butcher’s shop selling meat slaughtered in accordance with the law of the Israelite cult.

The applicant was brought before the correctional chamber of the Tunis court of first instance for the offence of selling at illegal prices. In case no. 44771/1999 dated November 18, 1999, the defendant was fined 300 dinars.

Considering that the applicant’s butcher’s shop (located on avenue de la Liberté, in front of the Great Synagogue) is a butcher’s shop intended to sell meat slaughtered in accordance with the Israelite religion. In this case, the sale of this meat is subject to the rules stipulated in law no. 58-78 on Israelite worship.

Whereas article 2 of this law stipulates that Israelite religious associations are responsible for organizing and controlling the service of ritual slaughter, unleavened bread and kosher food products, with the assistance of rabbis.

The Chief Rabbi of Tunisia, appointed by decree, is competent to determine the price of meat slaughtered and sold according to Israelite tradition. The Court replied that it was not its place to respond to the details of the parties’ arguments, especially if the arguments put forward in defense were unconvincing and contradicted the defendant’s confessions.

Firstly, the judge ignores two fundamental principles of law: The first concerns the general principle that special law derogates from general law. In this case, the special law is the law of July 11, 1958, which applies to Tunisian Jews in all areas of life linked to the practice of their religious rites, as in the case of kosher meat.

The general provision on competition and prices applied by the judge does not apply in this case because we are not talking about a commercial product or, in particular, meat that every Tunisian citizen buys, but rather a special type of product such as kosher meat that belongs to a particular religious group. Article 2 of this law is clear and explicit, as mentioned above.

In this context, it is necessary to recall two fundamental principles that the judiciary must apply in all disputes: equality before the law and equality before the justice.

In this case, the judge must respect the power vested in the Chief Rabbi, who plays a role of guidance, impetus and reference for the Tunisian Jewish community. But also, the judge must respect the religious practices of Tunisian Jews and apply this law, in order to enshrine the neutrality of justice. Otherwise, it can be said that the judge does not treat Tunisian Jews like the rest of Tunisians.

In this case, the judge also ignored all the evidence, including the certificate issued by the Chief Rabbi of Tunisia and the purchase invoice attached to the file, which indicates that the claimant purchased three cows and two sheep, and that the weight of the beef is 368 kg at a price of 2,208 dinars, therefore the price of one kg of meat when purchased at the slaughterhouse is 6 dinars for the beef, and that the weight of 02 sheep is 11 kg at a price of 107 dinars, therefore the price of one kg of lamb meat when purchased at the slaughterhouse is 9.727 dinars. In this case the judge did not respect the freedom of means of proof.

At this stage, the judge’s intimate conviction enables him or her to take into account the reality and subjectivity of the act to be judged, through the means of proof. This has been determined by the Court of cassation on numerous occasions, as long as the judge’s judgment is reasoned and legally admissible. However, in this case, the reasoning is ill-founded, since the judge marginalized all official evidence and failed to apply the law on Tunisian Jews.

The applicant argued before the Court of Cassation that the meat he sold was subject to the tax paid to the Chief Rabbi, contrary to what he had declared before the economic control inspectors, and that he was acting in good faith.

Furthermore, under the terms of article 13 of the 1958 law, the resources of provisional management committee for the Israelite faith (whose members are appointed by ministerial decree) are made up of the income from the assets it manages, the proceeds of special taxes instituted for its benefit in accordance with the regulations in force and for Jewish worship, and the proceeds of gifts and bequests, and offerings and payments for religious ceremonies and services.

In the context of these challenges, the judge disregarded or ignored the application of laws specific to the tax on kosher meats and focused on the law on competition and prices to justify the fine. These are the following texts:

• Decree of July 8, 1888 creating a tax on kosher meat for the benefit of the Tunisian Israelite Relief and Charity Fund.
• Decree no. 77-753 of September 19, 1977, implementing the decree of July 8, 1888 creating the tax on kosher meat. The following provisions are cited:

Article 1: « The rate of the tax levied by the provisional management committee for the Israelite faith in Tunis, as set by the aforementioned decree n°66-448 of November 14, 1966, is raised to eighty millimes per kilogram of kosher meat. »

Article 2: “This tax will be collected by the municipal collector of Tunis, who will pay it monthly into the coffers of the provisional management committee for the Israelite faith in Tunis after deduction of a 1% deduction for collection costs for the benefit of the commune’s budget.”

In addition, the Chief Rabbi of Tunisia is considered the leading religious figure in the Tunisian Jewish community. According to article 16 of the law governing the Jewish faith, he has a dual role: political and religious. His main mission is to bring together, in harmony and mutual respect, all the Israelites of Tunisia around the moral values and spiritual principles of Judaism.

Ritual slaughter must be carried out by a person who meets certain conditions specified in biblical and Talmudic texts, and requires two Jewish notaries chosen by the Chief Rabbi to ensure that it is Kosher for Jews.

In this context, it should be remembered that as far as synagogues are concerned, Article 2 of the Law on Israelite Worship recognizes that Israelite religious associations are responsible for the administration of Israelite religious practices, in particular: the service of ritual slaughter, unleavened bread and Kosher food products with the assistance of rabbis.

Similarly, the rules laid down by the Chief Rabbi state that everything concerning Israelite religious practices falls within the Chief Rabbi’s legal jurisdiction.

Article 16 of the aforementioned law states that the Chief Rabbi « presides over Israelite religious solemnities. He is competent to interpret Mosaic law, particularly with regard to ritual slaughter, the making of unleavened bread and Kosher food products ».

He can officiate and preach in all synagogues, and has a particular say in the appointment and training of rabbis, as well as in the organization of Israelite worship. As such, « he is obligatorily consulted by religious associations for the appointment of Rabbis. He supervises synagogues and religious teaching establishments ».

What can be concluded from this ruling is that it establishes exclusion and discrimination against Tunisian Jews, which is contrary to the principle of non-discrimination enshrined in the Constitution and international human rights treaties ratified by Tunisia. Consequently, the State has an obligation to protect the rights of religious minorities and not to interfere with the practice of their religious rites. In particular, the State must provide them with the necessary means to exercise their religious practices in a fair and safe environment, without any discrimination with other groups representing the dominant religion.

However, this ruling ignored the rights of Tunisian Jews, in particular the rights and legal powers of the Chief Rabbi, the only legitimate representative of Jews in Tunisia.

Footnotes

1. “The Israelite citizen is therefore free…” – Quoted from the Court of Cassation’s interpretation of religious freedom in Tunisia.
2. Case no. 6835, Court of Cassation, June 5, 2001 – Judgment on kosher meat pricing and religious exemption.
3. Law No. 58-78 of July 11, 1958 – Regulates Israelite religious practice and administration in Tunisia.
4. “dhimmi” – Historical protected status for Jews and Christians under Islamic rule, involving special taxation.
5. “ahd al aman” – Reforms introduced by Mohamed Bey of the Husainid dynasty granting legal equality to non-Muslims.
6. Decree of July 8, 1888 – Established a tax on kosher meat in favor of the Tunisian Israelite Relief and Charity Fund.
7. Decree No. 77-753 of September 19, 1977 – Updated tax regulation on kosher meat, enforcing municipal collection and budget allocations.
8. Decree No. 66-448 of November 14, 1966 – Preceding decree determining the tax rate per kilogram of kosher meat.
9. Article 13, Law No. 58-78 – Defines the financial resources and administrative structure of the Israelite religious committee.
10. Article 16, Law No. 58-78 – Outlines the roles, authority, and responsibilities of the Chief Rabbi in religious governance.