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Religious Freedom Between International Law and Tunisia's Legal Religious freedom between international law and Tunisia’s legal order La libertad de culto entre las leyes internacionales y el ordenamiento legal de Túnez Autor: Hajer Gueldich DOI: https://doi.org/10.25058/1794600X.1785 Revista Misión Jurídica / ISSN 1794-600X / E-ISSN 2661-9067 Vol. 13 - Número 19 / Julio - Diciembre de 2020 / pp. 40 - 60 RELIGIOUS FREEDOM BETWEEN INTERNATIONAL LAW AND TUNISIA’S LEGAL ORDER* La libertad de culto entre las leyes internacionales y el ordenamiento legal de Túnez Liberdade religiosa entre o direito internacional e a ordem legal da Tunísia Prof. HAJER GUELDICHa Professor of International Law at the University of Carthage Elected member of the African Union Commission of International Law (AUCIL) [email protected] Fecha de recepción: 12 de mayo de 2020 Fecha de revisión: 15 de mayo de 2020 Fecha de aceptación: 01 de junio de 2020 DOI: https://doi.org/10.25058/1794600X.1785 Para citar este artículo: Gueldich, H. (2020). Religious freedom between international law and Tunisia’s [legal order. Revista Misión Jurídica, 13(20), 40-60. [ ABSTRACT This paper aims to clarify about Religious freedom in the legal Tunisian framework. It emphasizes Tunisia’s choice as a secular state which separates civil state and religion. Moreover, it highlights the Tunisian exceptionality in its legal achievements in this area, and emphasizes on what differentiates Tunisia from other Arab countries, regarding this protection, especially on - Family status and women rights’ related matters. Namely this paper will focus on the last reforms aiming to allow the Tunisian Muslim woman to marry non-Muslim men and to establish inheritance equality between men and women. These new decisions are still controversial for a society divided between progressive Democrats and regressive Islamists. KEY WORDS Freedom of religion; freedom of conscience and belief; Islam; secular state; Tunisian Constitution; women rights; family law; inheritance; marriage of Muslim women. a. Mrs Hajer GUELDICH is a Professor of Public Law at the University of Carthage (Tunisia), specialized in International law and responsible of the Master’s Degree Program in African Union Law and policy. She is also an elected Member of the African Union Commission on International law (AUCIL) (since 2015) and presently the General Rapporteur of the Commission. She has been an appointed member of the Team of experts of his Excellency Paul Kagame on the Institutional Reform of the African Union, since 2017. Her experience in the field of teaching, since 1999, gives her a large expertise and the opportunity to do several publications in the fields of International law, humanitarian law, human rights, constitutional law, political science, Administrative Organisation, Compared legal systems and transitional periods, in Tunisia and abroad. Her contact with the African Union, as she provides consultation in the field of International law, International criminal law and Integration law, let her to analyze different aspects of African International law, especially within studies aiming to develop International law in the continent. 41 RELIGIOUS FREEDOM BETWEEN INTERNATIONAL LAW AND TUNISIA’S LEGAL ORDER RESUMEN PALAVRAS CHAVE El objetivo de este artículo es aclarar la libertad Liberdade de religião; Liberdade de de culto en el marco legal tunecino. Hace énfasis consciência e crença; Islamismo; Estado secular; en la elección de Túnez como estado secular, que Constituição da Tunísia; Direitos das mulheres; separa estado civil y religion. Direito de família; herança; casamento de mulheres muçulmanas. Por otro lado, destaca la excepcionalidad tunecina en sus avances jurídicos en este área y enfatiza en lo que diferencia a Túnez de INTRODUCTION otros países árabes, acerca de esta protección, The Tunisian population is 98 percent Muslim especialmente en cuestiones relativas al and overwhelmingly Sunni1. Groups that constitute estatus familiar o los derechos de las mujeres. less than 2 percent of the population include Shiaa Concretamente, este artículo va a enfocarse en Muslims, Bahais2, Jews, and Christians3. Since the las últimas reformas que apuntan a permitir a Tunisian Revolution for liberty and dignity of 14 las mujeres tunecinas musulmanas casarse con January 2011, continuing the democratization hombres no musulmanes y establecer igualdad en process that began in 2011 is fundamental. The 2014 la herencia entre hombres y mujeres. Estas nuevas new Tunisian Constitution4 upheld many key civil, decisiones todavía son controversiales para una political, social, economic and cultural rights. Sociedad dividida entre demócratas progresistas e islamistas regresivos. Tunisian State provides for freedom of religion on its Constitutional clause. This rule applies as long as public rights are not harmed in the observation of PALABRAS CLAVE rituals and practices5 . However, there are restrictions Libertad de culto; libertad de conciencia y implemented that favors Islam as a dominant creencia; Islam; Estado secular; Constitución religion6. In fact, the presidential seat is exclusive to de Túnez; derechos de las mujeres; derecho de familia; herencia; matrimonio de mujeres musulmanas. 1. See BEN ACHOUR, Y. (2008), Aux fondements de l'orthodoxie sunnite, Cérès éditions, Tunis. RESUMO 2. The Baháʼí Faith is a religion teaching the essential worth of Este artigo visa esclarecer o respeito à all religions and the unity of all people. Established by Baháʼu'lláh in 1863, it initially grew in Persia and parts of the Middle East, liberdade religiosa no quadro jurídico tunisino. where it has faced ongoing persecution since its inception. It is Ele enfatiza a escolha da Tunísia como um estado estimated to have between 5 and 8 million adherents, known as Baháʼís, spread throughout most of the world's countries and secular que faz a diferença entre o estado civil e a territories. religião. See ADAMSON, H. (2006), Historical Dictionary of the Baháʼí Faith, Oxford, UK: Scarecrow Press. Além disso, destaca a exceção da Tunísia em suas conquistas jurídicas nesta área, e enfatiza o 3. https://www.state.gov/documents/organization/171746.pdf 4. The Tunisian Constitution of 2014 was adopted on 26 January que diferencia a Tunísia de outros países árabes, 2014 by the Constituent Assembly elected on 23 October 2011. em relação a essa proteção, especialmente nas It was passed on 10 February 2014 replacing the constitutional questões relacionadas ao estatuto de família e law of 16 December 2011 that temporarily formed the basis of government after the suspension of the Constitution of 1959. direitos da mulher. A saber, este artigo focará 5. See CHARFI, A. (2008), « Islam alibi, islam assumé », in nas últimas reformas com o objetivo de permitir Mélanges Yadh BEN ACHOUR, Droits et culture, CPU, Tunis, 2008, que a mulher muçulmana tunisiana se case pp. 71-81. com o homem não-muçulmano e estabelecer CHARFI, A. (2004), L’Islam entre le message et l’histoire, Tunis, Sud Éditions. igualdade de herança entre homens e mulheres. Essas novas decisões ainda são controversas 6. "Tunisia, during the reign of Bourguiba or Ben Ali, is far from por uma sociedade dividida entre democratas being religiously neutral. In the constitution of January 27, 2014, Islam is apprehended both as an identity referent reflecting the progressistas e islâmicos regressivos. socio-cultural and religious traditions of the country but also as the official religion of the State, although the State is proclaimed civil, in accordance with article 2 of the constitution", see LIMAM, J., (2015), "La liberté de religion: les dimension de l'ambivalence", in FERCHICHI, W. (dir.), Libertés religieuses en Tunisie, Conférence de l'ADLI, Tunis, 13 février 2015, FSJPST, p.38. 42 HAJER GUELDICH Muslims7. Furthermore, the Tunisian government assumes authority in the control and regulation of The freedom of religion is defined as "the freedom mosques across the country in accordance to the for any individual to adhere to the confession of enacted Law on Mosques in 19888. Similarly, it pays his or her choice; or to reject them all (freedom of for the salaries of Muslim prayer and ritual leaders. conscience), to express and teach their beliefs and beliefs (freedom of opinion) and public worship As a matter of fact, Islam is the official religion9 corresponding to his faith (freedom of worship)"13. in Tunisia. But contrary to many Arab states, Tunisia The freedom of religion regroups at the same time the enjoys degrees of secularism and religious tolerance10 freedom of conscience, the freedom of opinion and For instance, there is no penalty for apostasy11 in the freedom of worship14. Tunisia 12. There is no doubt that "corresponding to the 20th century trend toward democratization is the 7. Article 74 of the Tunisian Constitution requires the head of state to be a Muslim. The paragraph 1 of article 74 clearly evolution of religious liberty as a fundamental human provides that: " Every male and female voter who holds Tunisian right. Democracies are structured to accommodate nationality since birth, whose religion is Islam shall have the difference and most countries today are populated by right to stand for election to the position of President of the Republic". This condition will serve as a permanent bar to any people with a range of religious commitments; thus candidates of non-Islamic faith backgrounds or those who are religious liberty now is considered a basic human atheists. right"15. 8. The Law of 3 May 1988 on Mosques provides that only personnel appointed by the Government may lead activities in mosques and stipulates that mosques must remain closed except In Tunisia, the freedom of religion is not only during prayer times and other authorized religious ceremonies, a legal framework, it is also a style of life that was such as marriages or funerals. http://www.mdeaf.gov.tn/ introduced by the first Tunisian President Habib images/textes-juridiques/L88-34Fr.pdf Bourguiba16 . According to M. Camau, «Tunisia is one 9. "There is no definition which is recognized as valid for religion. The Latin term religio was first defined by Cicero as "taking care of the most modernist states of the Arab-Muslim of a superior nature that is called divine and to worship him".
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