Access to secondary education for children from religious families

In recent years, the relationship between religion and education has increasingly gained the attention of governments of individual states and international institutions. This article draws attention to the fact that, despite the progress made in the field of access to education at the international level, the objective of ensuring fair educational prospects remains unattainable for a number of vulnerable groups, including children from religious families. The article clarifies all the fundamental human rights and reaffirms the main role of the state in realising the objective of providing fair educational prospects for all children. There are 1229 children without access to education in Kyrgyzstan. Such data are provided by non-governmental organizations with reference to the Ministry of Education of the KR. “In the 2018-2019 academic year, the Ministry of Education conducted a survey of school-age children, which revealed that 2,234 young Kyrgyzstanis do not attend school for various reasons. 1,116 children were able to return to school with the help of support agencies, while another 1,229 children remain out of school”, according to a 2018 survey by non-governmental organizations. It is noted that 723 of them are children with disabilities aged from 8 to 18. 128 children did not go to the first grade for health reasons, 285 children refused to attend school due to family and social problems. It is reported that 120 children, whose parents belong to different religious denominations, were banned from attending school. Some teenage children have never set foot in general education institutions. For example, in Issyk-Kul district of the Issyk-Kul region, children from four families, whose parents are adherents of the “Yakyn Inkar” religious movement, were banned from accessing education. The parents of eight children decided to teach the Koran to their children at home. The prosecutor's office of Issyk-Kul district initiated a criminal case in this regard. The parents of the above-mentioned children have been prosecuted and are currently serving their sentences in prison. The right to education is a human right indispensable for the full development of the human personality; at the same time, it is a collective right to social development and general well-being. In its implementation, priority should be given to human values, with an emphasis on learning to live together and, above all, on “learning to be” a human being. In this spirit, the humanistic mission of education must be upheld and strengthened globally in order to create a better world. The two key dimensions of the right to education - the right from the perspective of access to education and empowerment from the perspective of the provision of knowledge, values, competencies and skills - are inextricably linked. The role of education in empowerment must be assessed from the perspective of its humanistic mission. This is of key importance for the “full development of the human personality” as the most important goal of education, enshrined in the UDHR (1948), Article 26 establishing the objectives of the right to education. The UNESCO Convention against Discrimination in Education (1960) echoes these goals verbatim.

1. Problems of access to education for children from religious families

The Constitution of the Kyrgyz Republic (hereinafter - the Constitution of the KR)  stablishes that human rights and freedoms are the highest value, they act directly, determine the meaning and content of the activities of all state bodies, local self-governments and their officials (paragraph two, part 1, article 23). In addition, the Constitution of the KR equally guarantees freedom of conscience and religion to everyone, and prohibits discrimination on the grounds of religious affiliation (part 1, articles 23, 34).

Nevertheless, there are problems with the implementation of the right to freedom of conscience and religion and the right to education in the Kyrgyz Republic. In some cases, this is facilitated by regulatory legal acts that govern freedom of conscience and religion, and in some cases - by law enforcement practice.

The results of the monitoring of court proceedings related to the implementation of the right to freedom of conscience and religion, conducted by the MNE “Search for Common Ground” in 2016-2018 show that state bodies face with a number of challenging issues in the field of the implementation of the right to freedom of religion, including those related to access to education for children from religious families.

In accordance with the Constitution of the KR (Article 46(1)), everyone has the right to education, in particular, children. However, it is known that in many countries of the world, the Kyrgyz Republic is not an exception, many children do not attend school for various reasons (due to poverty, health limitations, delays in development, migration, early marriages, violence). They are now being extended to children from religious families as well.

Thus, one of the reasons is the problems related to the wearing of headscarves by girls in school educational institutions. In everyday life, citizens use religious attributes in accordance with their wishes and beliefs, however, the issue of wearing religious clothing in schools raises disputes regarding the boundaries of freedom of conscience and religion as well as secular nature of secondary general education.

Nevertheless, there has been an increase in girls wearing headscarves for religious reasons in schools, and there were cases in Kyrgyzstan when parents did not send their children to school due to the requirement to wear school uniform. These facts were the subject of discussion in local self-government bodies (LSGB) and consideration by the Commission on Work with Children and Adolescents of Local State Administrations (LSA). There have also been instances of parents refusing to allow their children to attend certain compulsory subjects (e.g., physical education, drawing, music) for religious reasons.

Another aspect of the problem of access to education is that the number of religious educational institutions and the number of children attending them has increased sharply in Kyrgyzstan in recent years. Most of these educational institutions are madrasahs, the status of which is not entirely clear. Nevertheless, in practice, they function and educate children, yet their graduation documents allow them to be employed only in religious organizations, and this raises the problem of their graduates' access to other types and levels of education. In addition, the teaching methodology remains another problem of madrasahs – no secular school subjects are taught there, there are no teachers to teach these subjects. Thus, students at madrasahs are deprived of the right to access quality education.

According to the SAMK (Spiritual Administration of Muslims of Kyrgyzstan), there are a total of 92 madrasahs in the country, of these, 16 - for girls, 17 - mixed, and the rest are only for boys. There are 8 193 students attending religious schools. According to the head of the education department of the SAMK, only those who have completed 9 years of schooling are admitted to a madrasah. The religious instruction includes the Koran, hadiths, the biography of the Prophet, moral norms and the history of religion. In addition, children are tried to be taught the basic sciences: mathematics, physics, geometry, chemistry, Kyrgyz language and the history of Kyrgyzstan. The situation is similar with higher religious education institutions; there are currently more than ten of them in Kyrgyzstan. Graduates of higher religious educational institutions can obtain a diploma of higher religious education, which allow them to work only in religious institutions.

Thus, in practice, children from religious families face problems that deprive them of access to education:

  • prohibition by educational institutions to wear religious headscarves for girls;
  • refusal by parents to send their children to educational institutions, as they require wearing a school uniform, where the religious headscarf does not fit;
  • prohibition by parents not to allow their children to attend school or certain compulsory school subjects and so on for religious reasons.

 

2. The right to equal access to education 

a) International standards

The right to education is a human right that is guaranteed by international human rights law, which states ratify and adopt in their respective legislation to act within the framework of the law when ensuring this right.

Education has been one of the human rights since 1948 with the adoption of the Universal Declaration of Human Rights (UDHR), where it was proclaimed that “everyone has the right to education” (Article 26). Thus, the duty of the state to provide education to its citizens was established in international law.

This right has been further developed in the provisions of various international treaties, in particular in:

- UNESCO Convention against Discrimination in Education of 1960;

- the International Convention on the Elimination of All Forms of Racial Discrimination of 1965;

- the International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR);

- the Convention on the Elimination of All Forms of Discrimination Against Women of 1979;

- the Convention on the Rights of the Child of 1989;

- the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990;

- UN Convention on the Rights of Persons with Disabilities of 2006

The Kyrgyz Republic has ratified or acceded to all of the above international treaties. 

The right to education for all has also been reaffirmed by numerous regional treaties covering specific marginalised groups and incorporated into many national constitutions and laws, thanks to this requirement, the international community has made great strides in ensuring the right to education for all. Despite this, the prospect of access to education remains an elusive goal for many (girls, children with disabilities, refugees, indigenous peoples, religious and other minority groups).

The contractual obligations of the Kyrgyz Republic in the field of education are diverse and include obligations of both universal, regional and local nature. Obligations in this area also have different characteristics depending on the level of education, which can include preschool, school, specialised secondary, technical, higher, etc.

As stated in the UNESCO report on the implementation of the Convention and Recommendation against Discrimination in Education, discrimination and lack of equal access to education are the two major problems in the implementation of the provisions of international instruments.

The factor of discrimination in the field of education can be classified according to a number of criteria: gender, religion, nationality, age, citizenship, as well as place of residence, characteristics of individual physical and mental condition, financial security, etc. Discrimination on any of these grounds will constitute a restriction on access to education.

Universal contractual obligations. General provisions on the right of everyone to education, access to education are set out in Articles 13-14 of the 1966 ICESCR, which refer to the terms “accessibility for all”, “equal accessibility”, but do not provide their definitions.

In General Comment No. 13, the Committee specifies that States Parties are obliged to ensure that any education - whether public or private, formal or informal - must be aimed at achieving the goals and objectives defined in Article 13(1) of the ICESCR, which supplements Article 26 of the UDHR with three provisions:

  1. education shall be aimed at developing the “consciousness of the dignity” of the human being,
  2. it should “enable everyone to be useful participants in a free society”,
  3. as well as to promote mutual understanding among all “ethnic” groups, among all nations and all racial and religious groups. 

Among these objectives for education, which bring together Article 26(2) of the UDHR and Article 13(1) of the ICESCR, perhaps the most fundamental is that “education shall be aimed at the full development of the human personality”.

In addition, General Comment No. 13 defines the main criteria that characterize the right to education, its availability, accessibility, acceptability, adaptability. At the same time, accessibility is formed on the basis of the factors of non-discrimination, physical and economic accessibility. General Comment No. 13 places emphasis on the unconditional and immediate implementation of measures against discrimination.

The Kyrgyz Republic acceded to the 1960 Convention against Discrimination in Education (hereinafter - the 1960 Convention) as early as 1995. The scope of the term “access to education” is determined based on the systemic interpretation of the 1960 Convention as a whole. Thus, Article 3(1) of the 1960 Convention articulates the goal, which must be achieved by fulfilling the obligation of equal access, namely: the elimination and prevention of discrimination in the field of education.

Paragraph 1 of Article 1 of the 1960 Convention provides a relatively broad definition of the term “discrimination”, which “includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education”.

According to paragraph 2 of Article 1 of the 1960 Convention, the term “education” refers to all types and levels of education, and includes access to education, the standard and quality of education, and the conditions under which it is given. In addition, paragraph b of Article 3 of the same Convention provides for the obligation of states to ensure, by legislation where necessary, that there is no discrimination in the admission of pupils to educational institutions.

It should also be noted that the 1989 Convention on the Rights of the Child (Article 28(1)) establishes that the States Parties recognise the right of the child to education, where “... with a view to achieving this right progressively and on the basis of equal opportunities, they shall:

  • make primary education compulsory and available free to all;
  • encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
  • make higher education accessible to all on the basis of capacity by every appropriate means;
  • make educational and vocational information and guidance available and accessible to all children;
  • take measures to encourage regular attendance at schools and the reduction of drop-out rates”.

The two International Covenants on Civil and Political Rights (ICCPR) and Economic, Social and Cultural Rights (ICESCR) contain two different types of requirements for the implementation of their provisions: the “obligation to ensure result” (1) and the “obligation to take action” (2) respectively. The substantive difference in the wording is as follows:

- the first concept refers not only to recognition and respect of rights, but also a specific and immediate obligation to organise and ensure their implementation/observance, and if they are violated, effective remedies;

- the second concept implies progressive implementation: the obligation arises with respect to undertaking certain preparatory work (for example, taking measures at the legislative level), aimed at further ensuring the rights that have been recognised.

The concept of progressive implementation of rights under the ICESCR recognises that the resources of states are limited, the challenge for states is to make the best and effective use of those resources. At the same time, it should be noted that, as stated in the Vienna Declaration of 1993, “while development facilitates the enjoyment of all human rights, the lack of development may not be invoked to justify the abridgement of internationally recognized human rights” (para. 10). This implies that certain guarantees, notably protection against discrimination, including with regard to the right to education, should be immediately effective in order to achieve immediate results.

Multilateral regional treaties within the framework of the CIS, EurAsEC. In the regional context, the emphasis in the field of access to education is placed on ensuring uniform approaches to all persons residing in the territory of the States Parties. The Agreement on cooperation in the field of education dated May 15, 1992 (hereinafter referred to as the 1992 Agreement) entered into force in accordance with Article 13 from the moment of signing for its 10 participants, including the Kyrgyz Republic.

In Article 1(1) of the 1992 Agreement, attention should be drawn to the fact that the first sentence in the disposition of the norm contains the so-called norms-principles and refers to the obligatory observance and guarantees by States of the principles of equality (“equal rights to education”) and non-discrimination (“its accessibility regardless of nationality or other distinctions”).

In the context of the above principles of equality and non-discrimination, no conditions other than those of the general regime should be imposed on any groups (including religious groups) that could restrict access to education or put people in a formally and legally different position.

The 1992 Agreement recognises nationality and other differences as discriminatory factors. This international legal norm, like most international legal norms, is not self-executing, i.e., it must be provided at the national level with appropriate regulatory support regarding the scope of “conditions for obtaining education”. This refers, inter alia, to what exactly will be included in such conditions for each level of education and individual categories of citizens, what will be the rules for admission and education, and determining the cost of education. However, the international legal norm establishes the purpose and scope of such regulation: the conditions for obtaining education must be such as to ensure equality of rights in the field of education and its accessibility and exclude any discrimination - on national or other grounds. The norm is formulated in such a way that states shall “guarantee” such equality.

Discrimination and exceptions represent serious obstacles to the enjoyment of the right to education. In many cases, the prohibition of discrimination in the legislation of some states, including the Kyrgyz Republic, is limited and does not cover the full range of grounds for prohibitions specified in international treaties.

  • Legislation of the Kyrgyz Republic

The main regulatory legal acts that govern the right to education in the Kyrgyz Republic are the Constitution of the KR, which declares that the Kyrgyz Republic is a secular state, and no religion can be established as a state or compulsory one. Religion and all religious denominations shall be separated from the state and the state educational system (Article 1 and Article 7(1) of the Constitution of the KR). Based on the above constitutional principles, the modern education system in the Kyrgyz Republic is based on the constitutional principles of secularism. In the legal literature, the concept of secular nature of education in educational institutions is revealed in several meanings:

first, as the inadmissibility of establishing any world view, including a religious one, as obligatory in state and municipal educational institutions;

second, as ensuring the rights of students and teachers to freedom of conscience and speech;

third, as the inadmissibility of coercion in teaching religion or studying religious culture, as well as in joining or staying in any association;

fourth, as the inadmissibility of holding religious observances in state and municipal educational institutions.

The Constitution of the KR defines the right to education as a universal value. Article 46 of the Constitution of the KR guarantees free pre-school, basic general, secondary general and primary vocational education in state educational institutions. The legal mechanism for the implementation of the right to education is enshrined and developed in the Law of the KR of April 30, 2003 No. 92 “On Education” (hereinafter referred to as the Law of the KR “On Education”).

Article 3 of the Law of the KR “On Education” establishes that “citizens of the Kyrgyz Republic have the right to education regardless of gender, nationality, language, social and property status, health limitations, type and nature of occupation, religion, political and religious beliefs, place of residence and other circumstances".

In addition, Article 10 of the Children’s Code of the Kyrgyz Republic states that “every child has the right to education, which shall be provided in the manner prescribed by the legislation in the field of education, and he/she shall be guaranteed free primary, basic, secondary and free primary vocational education in state and municipal educational institutions”.

According to Article 4 of the Law of the KR “On Education”, education is a priority strategic area of the state policy of the Kyrgyz Republic and is based on the principles proclaimed in international treaties and covenants, the UDHR, on the principles of democracy and humanistic values of the people, world culture. The basic principles of the state policy in the area of education are:

- equality of the rights of all citizens of the Kyrgyz Republic to quality education;

- obligatory and tuition-free primary, basic general and secondary general education for every citizen in state and municipal educational institutions;

- the possibility of obtaining tuition-free primary, secondary and higher vocational education in state educational institutions within the requirements of state educational standards;

- the possibility of obtaining education on a paid basis, including in state educational institutions;

- the humanistic nature of education, the priority of universal human values combined with national cultural wealth, the education aimed at promoting civic consciousness, industriousness, love for the family, Motherland and the environment, patriotism and respect for human rights and freedoms;

- focus on the achievements of national, world science and international experience;

- consistency and continuity of the educational process;

- independence of education from political and religious institutions;

- diversity of educational institutions by types and forms of education, upbringing, areas of activity and forms of ownership;

- the secular nature of education in state and municipal educational institutions;

- general accessibility of secondary general education, conformity of the education system with the levels and peculiarities of students’ development and training;

- creation of conditions for the continuous creative growth of particularly gifted students;

- the possibility for the functioning of non-state educational structures;

- academic freedom of educational institutions, academic integrity.

These principles are consistent with Article 13 of the ICESCR, which recognises the right of every person to education, which shall be aimed at the full development of the human personality and consciousness, as well as his/her dignity; shall strengthen respect for human rights and fundamental freedoms; shall enable all to be useful participants in a free society and promote understanding, tolerance and friendship among all nations and all racial, ethnic and religious groups.

The issues of the correlation between education and religion, as well as the relationship between religious organizations and educational institutions and the activities of religious educational institutions, are regulated by the Law of the KR “On Freedom of Religion and Religious Organizations in the Kyrgyz Republic”. Thus, in accordance with its aarticle 6, access to various types and levels of education is one of the main social guarantees that are provided to persons regardless of their attitude to religion.

The meaning of the various types and levels of education in the Kyrgyz Republic will be discussed in the next section.

3. Education system of the Kyrgyz Republic 

a) Types and levels of education

The Law of the KR “On Education” provides for the existence and functioning of different levels of education in the Kyrgyz Republic (from preschool to postgraduate), as well as additional education for children and youth, additional education for adults, and specialised education, in which people of different ages, levels of knowledge and health conditions are educated.

The Law of the Kyrgyz Republic “On Education” does not use such a concept as types of education, but from the meaning of this norm, types of education are understood as types of educational programmes.

In particular, Article 11 of the Law of the KR “On Education” establishes the following types of educational programmes in the Kyrgyz Republic, which in turn are divided into levels (see Diagram 1):

  1. general (basic and additional);
  2. professional (basic and additional) educational programmes.

Diagram 1.

Years of study

…

8

7

6

5

4

3

2

1

Postgraduate education

Postgraduate studies, doctoral studies, retraining and professional development

(**)

Additional education

…

24

23

22

21

20

19

18

17

16

 

15

14

13

12

11

10

9

8

7

6

5

 

Age of students

Complete higher education

Master's degree

Training of specialists

Higher professional education

Basic higher education

Bachelor's degree 

Vocational secondary education

Incomplete higher education

Vocational technical education

11

10

9

8

7

6

5

4

3

2

1

0

Level 3 complete secondary education 

Level 2

Basic secondary education (*)

School education

Level 1

Elementary secondary education

Pre-school education

 

General education includes the following programmes (school education):

- pre-school education (children aged from 6 months to 7 years);

- primary general education (grades 1-4 - children aged 6-7 to 10-11);

- basic general education (grades 5-9 - children aged 10-11 to 15-16);

- secondary general education (grades 10-11 - children aged 17-18);

- additional education (children, teenagers and youth - in out-of-school, preschool educational institutions, schools and other institutions providing additional education, in particular, in music and art schools and other educational institutions that have the appropriate licenses).

All students who have completed primary school shall be admitted to basic general education programmes without competition. Graduates of specialised primary schools shall be admitted for studying basic general education programmes provided that their level of competence has been verified.

Persons with basic general education have the right to continue their studies in the programmes of initial vocational and secondary vocational education.

Secondary general education provides fundamental theoretical knowledge, the development of a general culture of the individual and specialised in-depth training according to student’s interests and abilities, which are necessary for continuing studies in secondary, vocational secondary or higher professional education programmes.

Public secondary education is free of charge for all graduates of basic general education.

Moreover, out-of-school education is allowed, which is carried out by a network of extracurricular educational institutions of cultural and aesthetic, natural science, environmental and naturalistic, technical, sports and other areas in order to better meet the diverse interests and needs of children and teenagers, organise free time and recreation, health promotion, career guidance, moral and intellectual development of the individual.

The state provides funding for public extracurricular educational institutions, as well as additional education programmes. 

Vocational educational programmes include:

- initial vocational education;

- secondary vocational education;

- higher professional education;

- postgraduate professional education;

- additional professional education.

Vocational training can be obtained in educational institutions of initial vocational education, other educational institutions and through individual training by appropriately licensed specialists.

  • Initial vocational education

Initial vocational education in the Kyrgyz Republic includes training, professional development and retraining of skilled workers.

Persons with basic general or secondary general education are admitted to the initial vocational education programmes. Skilled workers are trained under a single integrated programme of general and vocational education. Where necessary, conditions are created for acquiring a profession for persons who do not have a basic general education. Initial vocational education programmes are implemented in educational institutions providing initial vocational education. Persons who have completed the initial vocational education programme are awarded a professional qualification.

  • Secondary vocational education

Secondary vocational education in the Kyrgyz Republic involves the training and retraining of mid-level specialists based on basic general or secondary general education. Persons who have successfully completed secondary vocational education programmes are awarded a relevant professional qualification. Secondary vocational education programmes are implemented in educational institutions providing secondary vocational and higher professional education.

  • Higher professional education

Higher professional education in the Kyrgyz Republic includes the training and retraining of bachelors, specialists and masters in order to meet the needs of the individual in deepening and expanding education on the basis of secondary general, secondary vocational and higher professional education. Higher professional education programmes are implemented in educational institutions providing higher professional education (higher educational institutions). Persons, who have completed secondary vocational education in a relevant field, can obtain higher professional education under accelerated programmes. Persons with higher professional education can obtain second and third higher professional education under accelerated programmes. The list of areas and specialties of higher professional education, the standard terms for mastering the programmes and the procedure for their implementation are established by the relevant state educational standards.

Access to higher professional education is possible with a certificate of secondary general education, a diploma of secondary vocational education or a diploma of higher professional education (when obtaining a second, third, and so on higher education).

  • Postgraduate professional education

Postgraduate professional education in the Kyrgyz Republic implies the implementation of training programmes for scientific and pedagogical personnel with academic degrees of Candidate and Doctor of Science. The training of scientific and pedagogical personnel, as a rule, is carried out through competition, postgraduate, adjunct and doctoral studies, established in educational organizations of higher professional education and scientific institutions.

Academic degrees of Candidate of Science and Doctor of Science shall be awarded by the state attestation body on the basis of a petition from the dissertation council, adopted on the results of public defence of the thesis by the applicant.

The academic titles of senior researcher, associate professor, professor shall be awarded by the state attestation body on the basis of the decision of the academic (scientific and technical) council of a higher educational institution (research institute) on the submission for the award of an academic title.

  •  Additional education for adults 

Additional education for adults in the Kyrgyz Republic (including retraining and professional development of personnel) is carried out through a system of different types and categories of educational institutions:

- in educational institutions providing general and vocational education beyond the basic educational programmes;

- in educational institutions providing additional education (at professional development courses, in music and art schools and in other educational institutions that have the appropriate licenses);

- through individual pedagogical activity.

The compulsory minimum content and standard terms for mastering each basic general education or basic vocational education programme shall be established by the relevant state educational standard.

Thus, the concept of “access to various types and levels of education”, as defined in Article 6 of the Law “On Freedom of Religion and Religious Organizations” in the Kyrgyz Republic”, implies that all persons, regardless of their attitude to religion, shall be guaranteed access to all the aforesaid types and levels education.

4. The right of access to education for children from religious families.

In this section, we will consider the essence of the problems identified at the beginning of this paper from the perspective of the Kyrgyz legislation and human rights standards in force in the Kyrgyz Republic.

The resolution of these identified problems is rather difficult due to the fact that it overlaps with a number of basic human rights guaranteed by international law, such as:

- the right to freedom of conscience, thought and religion (including beliefs);

- the right to education; 

- the right of parents to ensure the religious and moral education of their children in conformity with their own convictions; 

- equality of rights between children and inadmissibility of any forms of discrimination and separation; 

- the priority of the interests of the child in solving any issue concerning children, the so-called principle of the best interests of the child; 

- the right to measures of protection as are required by his status as a minor, on the part of his family, society and the State.

  • Wearing religious attributes in secondary educational institutions

The wearing of conspicuous religious attributes, whether it be wearing of headscarves, a Jewish kippah or a large Christian cross, in general education schools is considered one of the debated issues in ensuring the secular nature of the educational system and a stumbling block in state-religious relations in many countries around the world.

The Constitution of the KR and other laws do not explicitly prohibit the wearing of religious attributes both in state bodies and in non-governmental organizations, and even in secondary educational institutions. Nevertheless, the resolution of this issue should proceed from human rights standards and in accordance with the legislation of the Kyrgyz Republic.

The Law of the KR “On Freedom of Religion and Religious Organizations in the Kyrgyz Republic” does not regulate the wearing of religious attributes in secondary educational institutions. For the purposes of this Law, the term “religious symbol” is used - a sign, attribute or material feature indicating belonging to a particular religion. However, the Law of the KR “On Freedom of Religion and Religious Organizations in the Kyrgyz Republic” does not contain norms that refer to this concept, nor does it contain the concept of the term “religious clothing”. Therefore, it is not clear what refers to religious clothing.

At the same time, Article 6 of the Law of the KR “On Freedom of Religion and Religious Organizations in the Kyrgyz Republic” contains important provisions on access to the education system and religious education in the Kyrgyz Republic, which should be taken into account:

“Access to various types and levels of education shall be provided to persons regardless of their attitude to religion.

It is prohibited to establish religious organizations within educational institutions, except for religious educational institutions.

Citizens shall be admitted to study at higher and secondary religious educational institutions after they have received compulsory general secondary education in accordance with the Law of the KR “On Education”.

Article 1 of the Law of the KR “On countering extremist activity” must be taken into account, which defines extremist activity (extremism) as follows:

1) the activities of public associations or religious organizations or other enterprises, organizations and institutions, as well as the media, regardless of the form of ownership, or individuals in planning, organising, preparing and performing actions aimed at:

forcible change of the foundations of the constitutional system and violation of the integrity of the Kyrgyz Republic;

undermining the security of the Kyrgyz Republic;

seizing or appropriation of power;

establishing illegal armed groups;

engaging in terrorist activities;

inciting racial, national or religious hatred or social strife involving violence or incitement to violence;

abasement of national dignity;

organising mass disturbances, hooligan actions and acts of vandalism on the grounds of ideological, political, racial, national or religious hatred or enmity, or on the grounds of hatred or enmity against any social group;

propounding the exclusiveness, superiority or inferiority of citizens on grounds of their attitude towards religion, social, racial, national, religious or linguistic affiliation;

2) the promotion and public display of Nazi attributes or symbols or attributes or symbols that are confusingly similar to Nazi attributes or symbols;

2-1) the promotion of attributes or symbols of an extremist organization; 

3) public incitement to engage in the mentioned activities or the performance of the said actions; 

4) financing of the mentioned activity or other assistance in its implementation or performance of the said actions, including by providing financial resources, real estate, training, printing and logistical facilities, telephone, facsimile and other types of communication, information services, other material and technical means for the implementation of the said activity. 

The term “attributes and symbols of an extremist organization” refers to the attributes and symbols of an organization in respect of which, on the grounds provided for by law, a court has made a final decision to liquidate or ban its activities due to the implementation of extremist activities. The use of attributes and symbols of an extremist organization is allowed only for scientific purposes. 

Article 332 of the Criminal Code of the Kyrgyz Republic (as amended in 2021) establishes criminal liability for:

1) production, distribution, transportation or transfer of extremist materials or their acquisition or storage for the purpose of distribution, use of symbols or attributes of extremist organizations, as well as through the Internet, - shall be punishable by imprisonment for a term of up to five years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to two years.

2) the same acts committed: by a group of persons; by a group of persons by prior conspiracy; with the use of financial or other material assistance received from foreign public associations, religious or other organizations or foreign citizens; using their official position; while holding public events, - shall be punishable by imprisonment for a term of five to seven years, with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

Article 4 of the Law of the KR “On Education” establishes the following principles of state policy in the field of education:

- independence of education from political and religious institutions;

- the secular nature of education in state and municipal educational institutions.

This Law does not explicitly prohibit the wearing of religious attributes and clothing in secondary educational institutions, through which students openly express their religious affiliation. This issue is addressed by the legislator by referring to the Charter of the educational organisation, which is approved by its founder(s). Thus, Article 10 of the Law of the KR “On Education” stipulates that the Charters of educational organizations shall specify the dress code of students.

In accordance with paragraph 42 of the Model Regulations on a General Educational Institution, approved by the Decree of the Government of the Kyrgyz Republic of September 12, 2011 No. 541 (hereinafter referred to as the Model Regulations), students must comply with the requirements of the general educational institution regarding compliance with internal regulations, including school clothes.

The Model Regulations shall be used as a standard guideline, in particular, for schools that implement general education programmes of primary general, basic general and secondary general education; gymnasiums, lyceums that implement general educational programmes of basic general and secondary general education, while for non-state general educational institutions shall be used as a provisional guideline. Regulations on the respective types and forms of general educational institutions are developed based on the Model Regulations.

In accordance with Article 10 of the Law of the KR “On Education” and on the basis of the Modal Regulations a general education institution develops its own Charter. In addition, according to the Law, the Charter of an educational institution is subject to registration with the justice authorities after agreement with the Ministry of Education.

In addition, the Decree of the Government of the Kyrgyz Republic of August 12, 2015 No. 572, approved the “Unified Requirements for School Uniforms in General Educational Institutions of the Kyrgyz Republic” (hereinafter referred to as the Unified Requirements), where the school uniform for boys consists of a set of items: a shirt, waistcoat, trousers and suit jacket, in any combination, and for girls - blouses, waistcoat, skirts, trousers, dresses, apron, suit jacket, made in a classic style, in any combination.

These Unified requirements in state educational institutions on a single school uniform, which do not allow other forms of clothing, apply to all students without exception, regardless of religion. At the same time, they do not have any requirements or prohibitions regarding headwear. There is a ban on wearing sportswear and shoes, jeans, beachwear, home clothes and shoes in educational institutions; requirements regarding the length of the skirt, colour range (para. 3.4 of the Unified Requirements). Students’ clothing must comply with the requirements and standards established by the Technical Regulations “On the safety of children’s clothing and footwear’, approved by the Decree of the Government of the Kyrgyz Republic of October 10, 2012 No. 704.

However, restrictions on the wearing of religious clothing may be appropriate for constitutionally significant purposes—the protection of national security, public order, health and morals, and the rights of others. For example, in the context of preserving the religiously neutral nature of the public service, in this case (a state secondary educational institution).

Furthermore, the state should consider the impact that the wearing of such a symbol, presented and perceived as a mandatory religious obligation, may have on persons who:

- do not wear it, who are supporters of women’s rights and a secular lifestyle, but who still practice Islam;

- practice a different religion, but also provide for the wearing of religious attributes.

In this context, the rights and freedoms, morality and health of these persons, the younger generation, and the protection of public order in educational institutions require protection from the secular state, as does the freedom of religion of believers. At the same time, these introduced measures should not be excessive, depriving students in state educational institutions professing a particular religion of the right to freely practice their religion in accordance with its teachings.

An important aspect in addressing the problem of “wearing religious attributes” in educational institutions is also ensuring the provision of the Constitution of the KR (para. 1, Article 24), which clearly states that “no one may be subjected to discrimination on the grounds of sex, race, language, disability, ethnicity, religion, age, political or other opinion, education, origin, property or other status, as well as other circumstances. And these crucial circumstances in this case may be the desire and aspiration to preserve religious, ethnic identity by wearing religious attributes or emblems in a particularly unexpressed manner on the part of some students and their parents. They may contain a deeply thoughtful religious, spiritual and ethnic feeling of believers, and the administration of educational institutions should treat them with special care and respect, without belittling the religious feeling of students.

At the same time, such liberty of educational institutions leads to excessive abuse by parents and students of the right to wear religious clothing, expressed in the wearing of special religious clothing: khimar, chador, as well as the wearing by primary school girls (i.e., girls aged 6-10) of headscarves, explicit religious attributes in the form of crosses, etc.

In addition to freedom of religion, the issue of wearing religious clothing in educational institutions also affects the constitutional right of everyone to education, enshrined in Article 46 of the Constitution of the KR. This fundamental right of everyone to education is guaranteed equally to students in state, municipal and private schools. Despite its importance, this right is not absolute and may also be restricted for the same constitutional purposes and principles as freedom of religion.

The right to education, however, does not preclude the application of disciplinary measures, including suspension or expulsion from an educational institution to ensure compliance with its internal rules. Thus, Article 10 of the Law of the KR “On Education” states that the Charter of an educational institution establishes the procedure for expulsion of students, i.e., educational institution should provide for the procedure and grounds for expulsion of students.

The Law of the KR “On Education” does not regulate the procedure of application to student and removal of disciplinary sanctions from students. As noted above, students are required to observe and comply with the Charter of the general educational institution; follow the requirements of the educational institution to comply with the rules of the internal regulations, including school clothes.

According to paragraph 49 of a Model Regulations, a student who has reached the age of fifteen may be expelled for committing illegal actions and repeatedly violating the Charter, by decision of the Pedagogical Council and with the consent of the Commission on Children, as a last resort measure of pedagogical influence. The Commission on Children, together with parents (legal representatives) within a month makes a decision on sending the expelled student to another general educational institution to continue his/her education or on his/her employment. The decision to expel orphans and children left without parental (legal representatives’) care from the general educational institution is made with the consent of the family and child support department of the relevant local state administration.

At the same time, it is important to note that according to Article 10(2) of the Children’s Code of the KR, it is not allowed to expel a child from a state or municipal educational institution until he/she has completed basic education, i.e., before the completion of the 9th grade. Thus, the exclusion of a student before the completion of the 9th grade, including for non-compliance with the rules on school clothes, is unacceptable.

No doubt, the use of disciplinary sanctions is an integral part of the educational process, through which the school seeks to achieve the objectives for which it was established, including the development and shaping of the personality and spiritual qualities of students. However, the restrictions imposed should not result in the violation of the very essence of the right to education and the loss of its effectiveness. These restrictions should be predictable for the persons concerned and should pursue a legitimate aim

The right to education of students should not be restricted due to the confrontation between the administration of educational institutions and parents of students, where each party puts its values and principles above education. Thus, parents pursue the values of defining the religion of their children, while the educational institution, in turn, pursues the principles of secularism. Therefore, in order for such students to receive an education without any controversy, the state needs to find a middle ground in determining the maximum permissible presence of a religious component in the educational field, without infringing on the religious sense of believers and at the same time ensuring the principle of secularism in the educational institutions. At the same time, supporters of wearing religious attributes in educational institutions should remember and understand that the Kyrgyz Republic is a secular state, which is the basis of its constitutional system, and should treat the established norms and principles of the Constitution of the Kyrgyz Republic with due respect.

At the same time, another major constitutional principle is the principle of ensuring the best interests of the child (paragraph 2, Article 27 of the Constitution of the KR), and this includes ensuring the right of children to education. Any actions of state bodies, under the pretext of protecting national security, cannot be justified if they excessively, disproportionately restrict children’s rights to education.

Based on the above, it can be concluded that the wearing of religious attributes should not become a barrier to obtaining education and any decisions of the management of educational institutions that prohibit school attendance by virtue of wearing a headscarf constitute an obstacle to implementing the right of citizens to education.

Thus, the restrictions imposed on the wearing of religious garments must be strictly developed for specific purposes and adequately justified, i.e., they must be prescribed by law, be necessary for the protection of national security, public order, health and morals, as well as the fundamental rights and freedoms of other persons and must be proportional to the aim pursued, and not affect the essence of the human right itself.

  • Prohibition of parents from sending their children to school for religious reasons 

 

Another problem that relates to access to education for children from religious families is:

  1. refusal by parents to send their children to school, as they require wearing a school uniform, where the religious headscarf does not fit; they teach girls and boys together; or
  2. parents do not allow their children to attend the following school subjects:
    • drawing, as they force children to draw people and animals, while in Islam it is forbidden to draw people and living creatures, it is allowed to draw landscapes and still lifes;
    • music and physical education, as parents object to boys and girls dancing in pairs in lessons or doing physical exercises together.

Article 46 of the Constitution of the KR states that basic general education is compulsory, i.e., obtaining basic general education is not a right, but an obligation. According to Article 4 and Article 16 of the Law of the KR “On Education”, not only primary general and basic general education, but also secondary general education, are compulsory levels of education for all citizens of the Kyrgyz Republic. This obligation is incumbent on parents or persons in loco parentis. According to Article 27 of the Law of the KR “On Education”, parents (legal representatives) shall be held liable under the legislation of the Kyrgyz Republic for failure to fulfil the obligation of a child to receive a basic general education.

Thus, in accordance with Article 187 of the Criminal Code of the KR (as amended in 2021), failure or improper performance of child-rearing duties by a parent or other person entrusted with such duties, or by a teacher or other employee of an educational, child-care, medical or other institution responsible for the supervision of a child, if this act is combined with child abuse, shall be punishable by a fine of 200 to 500 calculated indices or correctional labour of two months to one year, or imprisonment of six months to one year with or without deprivation of the right to hold certain positions or engage in certain activities for up to three years.

According to Article 26 (paragraph seven) of the Law of the KR “On Education”, students shall master educational programmes at the level of the requirements of state educational standards, i.e., regardless of their religion, students must complete the curriculum of the general education institution, which they attend. In addition, a state-recognised certificate of education can only be obtained if the student has fully completed the general education programme and passed the final state attestation. A state-recognised certificate of the appropriate level of education and qualification is a prerequisite for continuing education programmes at the subsequent educational level.

In accordance with Article 68 of the Family Code of the KR, parents (persons in loco parentis) have the right and obligation to bring up the child, take care of his/her education, lead his/her actions in accordance with age and abilities, create the necessary conditions for full development, education, education, health promotion and preparation of the child for independent life in a family and society. Moreover, in accordance with the article 18 (4) of the ICCPR, parents have the right to religious and moral education of their children in conformity with their own convictions. 

However, according to Article 70 of the Family Code of the KR, parental rights cannot be exercised in conflict with the interests of children. Ensuring the interests of children should be the subject of the main care of their parents. In the exercise of parental rights, parents may not harm children’s physical and mental health or their moral development. The way in which children are brought up must exclude derogatory, cruel, rude or degrading treatment, insult or exploitation. Parents exercising parental rights to the detriment of their children’s rights and interests shall be liable in the manner prescribed by law.

According to Article 8 (1) of the Family Code of the KR, the implementation by family members of their rights and obligations must not violate the rights, freedoms and legitimate interests of other family members and other citizens. All issues relating to the creation of conditions for the full development of the child shall be addressed by parents (persons in loco parentis) by mutual consent, based on the interests and opinions of the children (Article 68 of the Family Code of the KR).

The child has the right to protection against abuses by his/her parents or persons in loco parentis, and if his/her rights are violated, he/she has the right to independently apply for their protection to the local branch of the authorised state body for the protection of children, and upon reaching the age of fourteen – to the court (Article 61 Family Code of the KR).

According to Article 18 of the UDHR, parents have the right to “ensure the religious and moral education of children in conformity with their own convictions”. This parents’ right is mentioned in other international documents on human rights as well, including the “Declaration on Eliminating All Forms of Intolerance and Discrimination Based on Religion or Belief”, where it is defined as a right of the child “to education, regarding religion or belief, in accordance the wishes of his parents."

In the school, this parental right must be respected in two ways.

Firstly, parents with different religious or philosophical convictions must have the possibility to choose private schools based on specific moral, religious or secular values. If there are not such schools, parents must have the right to establish them. This right of parents to establish and to choose for their children schools other than those established or maintained by the public authorities is recognised in the ICESCR (Article 13.3) and in the Convention against Discrimination in Education. 

Secondly, parents’ religious or philosophical convictions must be respected within public schools. According to the interpretation of Article 2 of Protocol No. 1 to the ECHR by the European Commission and the European Court of Human Rights, the state must “protect the children of certain parents from compulsory religious or philosophical instruction, which is not directed at providing information, but which is concerned with indoctrinating children with unacceptable beliefs, convictions or ideologies. This explicit prohibition of indoctrination is perhaps the most critical provision among the rights conventions with respect to open society approaches to schooling. It forbids religious education that is intended to inculcate an absolute truth or belief system.

Thus, it is obvious that the right of children to education is a priority and in their best interest than a single school uniform or joint education of boys and girls, including in music and physical education lessons, drawing animals and people. Accordingly, parents’ prohibition from attending school or certain compulsory subjects without providing an alternative, deprives the child of the right to education and constitutes an abuse of parental rights.