The right to education is one of the many additions brought by the 27 January 2014 Constitution. The 1959 Constitution had not dedicated a chapter to rights and freedoms or stipulated the right to education. This was not an oversight on the part of the National Constituent Council at the time; rather, it was the norm for the first generations of constitutions. The constitutionalization of the right to education began to spread only in the 1990s and the third millennium, and most constitutions still lack it.
Although the article on the right to education did not stir any mentionable disagreement within the constituent committee, it quickly came to be at the heart of the ideological dispute between Islamists and some of their allies, on one hand, and those termed “modernists”, on the other, after the General Assembly approved an amendment making education a means of “rooting youth in their Arab Islamic identity”. The dispute ended in a consensus more akin to a compromise, as occurred with the other contentious articles related to identity, following civil society pressure and as part of the comprehensive resolution of the political crisis that followed the assassination of [People’s Movement leader] Mohamed Brahmi. The content of Article 39 of the Constitution and the process of approving it not only demonstrate the centrality of education to the intellectual and political conflict in Tunisia but also constitutes a good example of the way that the Second Republic’s Constitution was written and the throes involved.
An Initial Neutral Phrasing Stirs No Disagreement in the Constituent Committee
The Rights and Freedoms Committee in the National Constituent Assembly (NCA) was one of the committees whose work was most affected by deep disagreements. The dispute revolved around certain articles, such as those on the right to life, freedom of belief and conscience, and women’s rights. The right to education, however, was not a point of substantial disagreement among the committee members of various persuasions. The committee’s report classified it among the articles whose content was agreed upon and over which disagreement was limited to superficial issues or phrasing. While there was a consensus that the state should “guarantee the right to free education at all levels”, the representatives disagreed on whether the school-leaving age should be set by law or by the Constitution.
The issue was resolved via the addition of a second paragraph enshrining compulsory education until at least the age of 16 in both the first and second drafts. Hence, Article 29 of the latter featured neutral phrasing that resembled most other constitutions that stipulate the right to education as it merely addressed the right to free education and the compulsory nature of primary education.
A remarkable aspect of this phrasing is the comprehensiveness of the right to free public education. The phrase “all levels” of education is absolute. Hence, rather than limiting free education to the elementary and secondary levels, as in many constitutions and international agreements, it also encompasses university education.
In the winter of 2012-2013, the draft constitution was presented for initial debate by the General Assembly and for communal discussion in many regions. The constituent committees then revised certain articles. To the article pertaining to the right to education, the Rights and Freedoms Committee added another state obligation, namely to strive “to provide the resources needed to achieve quality education and training and entrench and support the Arabic language”. While this obligation, unlike the guarantee of free education, constitutes a duty of due diligence, the phrase “entrench and support the Arabic language” is also a qualitative addition to the article as it constitutionalizes policies of Arabizing education. Although the Tunisian state had been gradually employing such policies since the 1970s, they remained a source of reservations for some of the elite.
The Political Crisis Delays the General Assembly’s Vote
Although the constituent committees finished their work in early April 2013, the vote on the articles did not occur until January 2014. This is because 2013 saw the escalation of the political crisis, especially following the assassinations of leftist leader Chokri Belaid on February 6 and then representative Mohamed Brahmi on July 25. After these incidents, opposition representatives joined the “Sit-in for the Departed” and boycotted the NCA. Subsequently, NCA President Mustapha Ben Jafar suspended the assembly despite opposition from the Ennahda representatives.
The breakthrough began in October when Ennahda accepted the roadmap proposed by the quartet consisting of the Tunisian General Labour Union, the Tunisian Confederation of Industry, Trade, and Handicrafts, the Tunisian Human Rights League, and the Tunisian Order of Lawyers. This quartet advocated a national dialogue among the political factions via several processes, one of which involved reaching a consensus on controversial issues in the Constitution’s drafting to pave the way for voting on them in the General Assembly.
A Surprise Amendment Passes in the General Assembly
On 7 January 2014, Article 38 of the draft constitution (which ultimately became Article 39) was put to vote in the General Assembly. Two amendments to it were proposed.
The first, proposed by Fatma Gharbi, who had resigned from the Democratic Forum for Labour and Liberties (FDTL) party and joined Nidaa Tounes, made two additions, the first requiring the state to seek to eliminate illiteracy (including digital illiteracy) and the second establishing its oversight over all educational institutions. Although the goal of combating illiteracy is mentioned in several comparable constitutions, this proposal failed to pass, obtaining only 61 votes because most Ennahda representatives went against the other blocs and voted against it.
The second amendment was proposed by FDTL representative and former minister of education Abdellatif Abid. It made two additions to the content. The first one relates to the goal of entrenching and supporting Arabic, by adding the phrase “and mainstreaming its use”. In his speech, Abdellatif justified the addition by stating that “our language is still excluded from many fields, such as administration, financial and technical transactions, and education” and adding as well that language is “a sovereign issue and a point of dignity, and we have no excuse for continuing to marginalize our language”. However, the more important addition was the goal of “rooting youth in their Arab Islamic identity” in order to “highlight the essence and objective of the education process”, especially as “all Tunisian education laws since independence, including Law no. 80 of 2002 currently in effect, emphasize [always, according to Abdellatif Abid] the role of education in rooting youth in their Arab Islamic identity”.
This justification is not accurate as Article 3 of the 2002 law stipulated that education aims “to entrench consciousness of the national identity [in students] and develop their sense of cultural belonging in its national, Maghrebi, Arab, Islamic, African, and Mediterranean dimensions [such that] their openness to human culture is bolstered” and that it is “the guarantee of a society rooted in the pillars of its cultural character, open to modernity, and inspired by the highest human ideals and universal principles of freedom, democracy, social justice, and human rights”.
The General Assembly approved this amendment with 136 votes for it, 13 votes against it, and 13 abstentions. Remarkably, support for this proposal went beyond the conservative parties, such as Ennahda and the Congress for the Republic, to include the Democratic Alliance Party, the FDTL, and representatives from the Progressive Democratic Party, which helped it obtain this relatively comfortable majority. Its submission by a representative from the FDTL, which was closer to the “modernist” opposition’s stances in most of the constitutional battles, and the absence of an opposing view to draw attention to its dangers before the vote helped facilitate its passage.
A Strong Reaction Outside the NCA
Even though the proposed amendment was not put to the Consensuses Committee and a similar proposal had, according to representative Nadia Chaabane, previously been rejected inside the Rights and Freedoms Committee, the vote on it initially did not trigger any issue inside the NCA. Rather, the General Assembly proceeded to vote on the amended article, which obtained a vast majority (141 votes), and then to the next articles.
However, the reaction came from outside the NCA, particularly from education and university circles and civil society organizations. Yadh Ben Achour, a professor of public law and president of the Higher Authority for Achieving the Objectives of the Revolution, Political Reform, and Democratic Transition, said in a television interview that the article was a “disaster” and that “7 January 2014 is a black day in Tunisian political history” because the article reduces the Tunisian identity to its Arab-Islamic component and renders education a tool for introversion instead of openness to other cultures. He noted that before this amendment, he had been satisfied with the result of the consensuses concerning the Constitution.
Meanwhile, a number of organizations launched a petition calling for the article’s revision and the adoption of phrasing that resembles Article 3 of the 2002 law. A march making the same demand was also held in front of the NCA.
A Difficult Consensus on a New Phrasing
This pressure pushed the opposition representatives, and even some FDTL representatives, to demand that the article be returned to the Consensus Committee so that a new phrasing could be found and presented to the General Assembly. This measure was allowed by Article 93 of the Internal Statue “if new factors concerning the subject emerge”. However, the Ennahda representatives opposed it, arguing that the Consensuses Committee had finished working.
The article remained one of the last points pending when it came time to vote on the Constitution. Ultimately, in a meeting of the heads of the blocs held after approximately two weeks on January 20, a consensus was reached on a new phrasing that combines “basing [instead of ‘rooting’] youth in their Arab Islamic identity” plus “their national belonging” with “openness to foreign languages and human cultures and spreading a culture of human rights”. On January 23, the General Assembly approved this phrasing via a vast majority (165 votes) that encompassed all the blocs, including Ennahda.
The Question of Identity in the Constitution: A Consensus or Compromise?
The logic of consensus triumphed over the perspectives of the numerical majority, as occurred in many contentious points, most related to identity and the relationship between religion and the state. The need for a two-thirds majority when the vote on the Constitution as a whole occurred, on one hand, and the interdependency of the constitutional process and the governmental and electoral processes and the desire of all sides to escape the crisis and avert the scenario that occurred in Egypt, on the other, helped overcome the various obstacles.
Although it was easiest, logically, to revert to the article’s original phrasing, doing so was impossible in this political and social context governed by battles over identity. The phrase “Arab Islamic identity” in this article had become nonnegotiable, so phrasing similar to what was agreed upon regarding the right to culture – “the national culture in its deep-rootedness, diversity, and renewal” – could not be adopted. Hence, the solution was to restore a kind of balance to the article by adding national belonging so that identity is not reduced to its Arab Islamic component, as well as adding “openness to foreign languages and human cultures” and the goal of “spreading a culture of human rights” and replacing “rooting” [tajdhir] with “basing” [ta’sil], which was considered milder.
The same logic prevailed in most articles related to identity, especially in the Constitution’s Preface and in Article 6. The solution was always to add other phrases and reference points with which the opponent identified, even at the expense of the text’s cohesion and readability.
The result was unresolved controversy and contradictory interpretations. This became evident when the bill on kindergartens was debated a few years later. The vote on the bill failed twice because the Ennahda bloc insisted on stipulating the goal of basing children in their Arab Islamic identity while other blocs defend the phrase “the Tunisian national identity”. Consequently, the bill remains shelved to this day.
Ordinarily, constitutions do not go into details, merely enshrining a right without constitutionalizing political choices. Rarely do articles stipulating the right to education contain references to identity. Such references appear only in certain multiethnic and multireligious societies to guarantee the right of minorities to preserve their cultures, not to interfere in curricula except to emphasize the promotion of human rights values. However, the debate over the Tunisian Constitution was governed by battles over identity, which produced tense arguments and difficult consensus. In each instance, the phrasing was consensual only because each side read in it what it wanted to read. Hence, these phrasings were akin to a political compromise that postponed the battle rather than settling it and left the question of identity without a clear answer.
Keywords: Tunisia, Education, Right to education, Free education, Identity, Constitution
 According to data from searching constituteproject.org.
 National Constituent Assembly, the Rights and Freedoms Committee’s report on the draft of articles for the rights and freedoms theme, 13 September 2012.
 Yadh Ben Achour, Tunisie: une révolution en pays d’islam, Cérès, 2016, p. 341.
 Article 13 of the International Covenant on Economic, Social and Cultural Rights distinguishes between levels of education, making elementary education compulsory and freely available to all, making secondary education generally available to all and gradually free, and making higher education equally accessible to all, on the basis of capacity, by every appropriate means, particularly the progressive introduction of free education.
 This reading is confirmed by Habib Khedher, the Ennahda representative who served as the general rapporteur of the Constitution, in his book al-Wajiz fi Sharh al-Dustur (Latrach Edition, 2017, p. 48). Note that Khedher did not hesitate to adopt a very conservative interpretation of several articles on which Ennahda was compelled to make concessions.
 National Constituent Assembly, Supplemental Report no. 2 of the Rights and Freedoms Committee, 4 April 2013.
 No trace of this proposal is found in the deliberations of the NCA’s general assemblies, so it most likely resulted from the dialogue with civil society.
 Shukri Mabkhout, Tarikh al-Takfir fi Tunis II: Abna’ Burqiba, p. 162.
 Examples include the constitutions of Portugal and Paraguay.
 Parliament, Mudawalat al-Majlis al-Wataniyy al-Ta’sisiyy al-Muttasila bi-l-Dustur (al-Jalasat al-‘Amma), vol. 3, p. 1434.
 Nadia Chaabane, Tunisie deuxième république, Chronique d’une Constituante, 2011-2014, Déméter Editions, 2018, p. 297.
 Ibid, p. 296.
 Yadh Ben Achour, Tunisie: une révolution en pays d’islam, Cérès, 2016, p. 342.
 Examples include the constitutions of Slovakia, Czechia, and Colombia.