Responding to prohibition of wearing headscarf in schools

Wearing headscarves in general education schools is one of the most discussed issues in supporting the secular educational system, which remains the stumbling block in state-religious relations in many countries of the world. Among academicians and politicians there are completely diverse opinions on that issue, some believe that wearing headscarf poses threat to secular educational system and the State, while others think that wearing it should not impede the right to education. There is no legislative regulation of this matter in the Kyrgyz Republic; however, based on analysis of regulatory legal acts, we suggest an analysis on how to settle the disputes arising in relation to wearing headscarves in general education schools.

Article 16 of the Constitution of the Kyrgyz Republic establishes that human rights and freedoms are inalienable and belong to everyone from birth. Human rights and freedoms are among the supreme values of the Kyrgyz Republic. They are applicable directly, and inform the meaning and content of the actions of all state bodies, local self-governments and their officials.

Thus, all actions and decisions of state bodies and institutions shall comply with the above norms and principles. The right to education is one of the basic natural human rights enshrined in Article 20 of the Constitution of the Kyrgyz Republic, which stipulates that the right granted by this Constitution to receive free basic and secondary education in state educational institutions shall not be subject to any restrictions. Based on this principle, it may be considered that wearing a headscarf may not serve as barrier to receive education and all kind of decisions made by management of educational institutions act as obstacles to the realization of citizens' rights to education.

Furthermore, Article 3 of the Law of the Kyrgyz Republic “On education” establishes that citizens shall have the right to education regardless of gender, nationality, language, social and property status, restrictions on health, type and nature of occupation, religion, political and religious beliefs, or place of domicile and other circumstances. Since wearing a headscarf is the result of religious beliefs, accordingly, no one has the functions to restrict the rights of students and the access to education.

Most analysts believe that wearing a headscarf threatens the principle of secularism of the State, and that it may affect the nature of education in government and municipal educational institutions, established in Article 4 of the “Law on Education” of the Kyrgyz Republic. However, Article 1 of the Law “On Education” determines the education system as a set of interacting successive educational programs and state educational standards having different levels and directions, while the educational system does not include such regulations as school uniforms or any other attributes. Wearing a headscarf is an outward expression of religious identity and fulfilling the requirements of religious beliefs, and in no way should be perceived as disseminating any religious or other beliefs that violate the principles of religious neutrality of educational system.

The rights of students in general education schools and basic requirements for school uniforms

All State, municipal and private educational institutions are required to provide parents with the statute of educational institution, license to perform educational activities and the certificate of state accreditation.

The rights of students are governed by the following regulatory legal acts of the Kyrgyz Republic:

  • The Constitution of the Kyrgyz Republic as of June 27, 2010;
  • The Law “On education” as of April 30, 2003 No. 92;
  • Family Code of KR as of August 30, 2003 No. 201;
  • The Code of KR “On children” as of July 10, 2012 No. 100

The statute of school is the most important normative document regulating the school life; therefore parents are strongly advised to read it carefully. However, the school statute must comply with the legislation of the Kyrgyz Republic. Based on Model Provision on general educational institutions approved by the Decree of the Kyrgyz Government as of September 12, 2011 No.541, students shall have the right to respect for human dignity and freedom of conscience and information, to freely express their own views and beliefs (part 41). But on the other hand, students are required to comply with the requirements of general educational institution on compliance with internal regulations, including school uniforms.

Decree of the Government of Kyrgyzstan as of August 12, 2015 No.572 sets forth the following standard requirements for school uniforms in educational institutions:

  1. The general type of clothing for students, its colour and design shall correspond to the classical style of dress. The personal appearance of students must be neat.
  2. Students dress must comply with the requirements and standards established by technical regulation “On safety of children's wear and shoes”, approved by Kyrgyz Government Decree No.704 as of October 10, 2012.

School uniform for girls:

  • Blouse, vest, skirt, trouser, dresses, apron and jacket made in classical style and in any combination;
  • The jacket, dress and trousers shall be made of plain colour fabric or in checks (black, grey, blue and burgundy);
  • The jacket may be single-breasted or double-breasted, semi-adjacent or straight silhouette;
  • The vest must have classical cut and in tone of main colour or in checks.
  • The jacket buttons and vest must have the same colour as the suit / skirt and be simple.
  • Trousers must have straight cut, but it is permitted to have slight narrowing downward.
  • The skirt may be straight, wide or narrowed, and pleated one or accordion-pleated. The minimum length of the skirt (dress) is 5 cm below the knee; the maximum length is to the middle of calf.

The school uniform in general educational institutions is of classical in nature. Wearing sportswear and shoes, jeans, beachwear, home wear and shoes is prohibited.

However, these norms do not expressly prohibit wearing headscarf in schools and this factor remains unregulated by normative acts. In such cases, the applicable norm shall be the Article 18 of the Constitution of the Kyrgyz Republic, which states that “everyone shall have the right to perform any actions and activities except those prohibited by this Constitution and laws”. On the other hand, it does not mean that schoolchildren may wear female religious clothes such as himars, chadras, niqabs or burqas.

Protection mechanisms in cases of prohibition of wearing a scarf in schools

Violations of students’ rights in secondary schools in relation to wearing headscarf may be expressed in two forms. The first form is when the general educational institution is the school, which statute has the provision that prohibits wearing headscarves as part of school uniform for girls. In the second case, the school administration, based on its statute, exerts psychological pressure and threatens with expulsion from school, etc. These two situations according to the Law of the Kyrgyz Republic “On education” and the technical regulation “On safety of children's wear and shoes”, approved by the Government Decree as of October 10, 2012 No.704, and the Model Provision approved by the Government of the Kyrgyz Republic as of September 12, 2011 No.541 shall be illegal on the part of secondary school administrations.

During the classes, a teacher is responsible for the life, health and moral and psychological state of students, where director of that institution bears full responsibility for students during entire educational process and for the time when students at school. In the case of moral and psychological harm to students during educational process linked with wearing headscarves, parents may sue the school administration to compensate for physical and moral damage. Moreover, there are cases of warning and intimidation of students to expel from schools for wearing headscarves. However, based on paragraph 49 of the Model Provision approved by the Decree of the Government of the Kyrgyz Republic as of September 12, 2011 No.541, exclusion of a student, who has reached the age of fifteen from the general educational institution shall be permitted only through the decision of pedagogical council of general educational institution and with the consent of the Commission on children’s affairs on cases for committing illegal actions and repeated violation of the Statute of general educational institution as an extreme measure of pedagogical impact.

The Commission on children’s affairs, jointly with parents (legal representatives) shall make the decision within one month period on referring the student to another general educational institution so he/she continues learning or employment.

1. Administrative appeal of the decision made by state agency for religious affairs

The exclusion from general educational institution or moral and psychological pressure on schoolchildren for wearing headscarves is a direct violation of the right of citizens to education, and in such cases, based on Article 61 of the Law of the Kyrgyz Republic “On the basis of administrative activities and administrative procedures”, the claimant and involved persons shall have the right to protect their rights with the aim to appeal the administrative acts, actions or inactions of administrative body. However, the parties must comply with the pre-trial dispute resolution procedure. An administrative act, action or inaction of administrative body shall be appealed through administrative (pre-trial) procedures, and subsequently in judicial proceeding. In such cases, the higher administrative body shall be the Rayon (district) or city education department.

Based on Article 63 of the mentioned Law, the administrative complaint may be filed within 30 working days from the date of handing the administrative act; from the date of committing an action on the part of administrative body; in case of failure to meet the deadlines for valid reasons, period for lodging an appeal may be restored by administrative body.

1.1. Complaint requirements

1.1. Complaint requirements

The complaint must contain:

1) name of administrative body which the complaint is filed to;

2) surname, name and patronymic of an individual filing the complaint, and his/her address;

3) surname, name and patronymic of an individual filing the complaint on behalf of legal entity, his/her position, including the location of legal entity;

4) subject of complaint;

5) the claim of person filing the complaint;

6) list of documents attached to the complaint;

7) date, month and year of filing the complaint;

8) signature of person filing the complaint;

9) signature of person filing the complaint on behalf of legal entity, and private seal (Article 64).

Administrative procedures conducted based on complaint shall be instituted on the day of registering the complaint with the administrative body. After initiating the procedure, a higher administrative body shall be obliged to immediately request from lower administrative body to provide the administrative case (materials) on administrative proceedings. The lower administrative body shall be obliged to submit the administrative case (materials) to higher administrative body within five days after receiving this request.

Having considered an administrative complaint against the actions of administrative body or official, the higher administrative body or official shall have the right to:

1) satisfy the complaint in whole or in part, having recognized the appealed action in whole or in part as unlawful and dismissed this action if it continued at the time of accepting the complaint;

2) dismiss the complaint with justification that the action was legal (Article 69).

The administrative act and decision on administrative complaint shall be binding.

1.2. Appeal against claim

Decisions made by city or district education department shall be appealed to higher administrative body through administrative (pre-trial) procedures in accordance with the Law of the Kyrgyz Republic “On the basis of administrative activities and administrative procedures”, and subsequently on the basis of Administrative Procedure Code of the Kyrgyz Republic through judicial proceedings. The pre-trial stage of appealing the administrative act is obligatory and judicial settlement of such disputes shall be possible only after complying with this order. Failure to comply with the pre-trial appeal procedures may result in refusal to accept the claim (Article 113 of APC) or return of the claim by court (Article 115 of APC).

2. Appealing the decision (action) of administrative body in judicial proceedings

In the manner prescribed by law, any interested person shall have the right to apply to the court seeking for protection of their violated or disputed rights, freedoms or law-protected interests. Thus, the parties may appeal the norms of Statute, which prohibit the wearing of headscarves, and the actions taken by school administration through filing an administrative claim with the court of first instance (Article 108 of APC). Administrative action is filed in courts in the form of written statement of claim.

Types of administrative claims and their claims under the lawsuit:

1) the claim challenging an administrative act or action, which contains the requirement to invalidate in whole or in part, the administrative act or actions of defendant;

2) the claim to protect the right, which contains the requirement on defendant’s obligation not to adopt the administrative act that burdens the plaintiff, or not to perform another action by that administrative body;

3) the claim seeking performance of an obligation, which contains the requirement on defendant’s obligation to adopt an administrative act or to perform certain actions;

4) the claim to validate the legality of regulatory legal act, which contains the requirement to invalidate the defendant's regulatory legal act;

5) the claim to verify the legality of expired administrative act, which contains the requirement to invalidate the defendant’s administrative act (Article 109 of APC).

Herewith, the parties must comply with the deadlines for filing an administrative claim. The claim shall be filed with the court within three months from the day the administrative body takes decision on administrative complaint considered in accordance with the legislation on administrative procedures (part 1 Article 110 of APC). The claim to verify the legality of subordinate regulatory legal act shall be filed with the court within three months from the day when plaintiff became aware of violation of his/her rights, freedoms and legitimate interests (part 4 Article 110 of APC).

The parties to administrative process shall be the administrative plaintiff and administrative defendant (Article 26 of APC). In such case, the students’ parents or their representatives (Article 29 of APC) act as administrative plaintiff (Article 27 of APC). The administrative defendant shall be the administrative body (in our case, this is the school administration), against which the claim is filed to the court (Article 28 of APC). The objective of administrative proceedings is to protect the rights, freedoms and interests of individuals, and the rights and interests of legal entities in the field of administrative-legal relations from violations on the part of administrative bodies and their officials through fair, impartial and timely consideration of administrative cases.

2.1. The procedures for filing an administrative claim

Administrative cases shall be considered in first instance by inter-district courts at the location of defendants. When appealing administrative acts and actions (inactions) of several defendants, the administrative claim shall be filed with the inter-district court at the location of one of the defendants at the choice of plaintiff (Article 16 of APC).

The claim shall indicate:

1) the court name which the claim is filed to;

2) the last name and first name (name) of plaintiff, mailing address, phone numbers, and bank details and email address, if any;

3) the name of defendant, last name, first name, position and place of work of an official, postal address, phone numbers, and bank details and email address, if any;

4) the name of the appealed act and the body or official who adopted the act;

5) the description of the appealed action (inaction) taken by administrative body or official.

The administrative claim shall be attached with:

1) the appealed act or its copy;

2) the decision of administrative body taken in relation to administrative complaint through pre-trial procedures of dispute settlement;

3) evidences that serve as grounds for the claim;

4) documents certifying the payment of state duty, except in cases where the plaintiff is exempted from paying it by law;

The claim shall be signed by plaintiff or his/her representative with signature date. In case the claim is filed by representative, it shall indicate the initials of representative, his/her postal address, and phone numbers and email address, if any. The power of attorney or other document confirming the authority of representative shall be submitted at any one time with the claim (Article 111 of APC).

2.2. The consideration of administrative case in court

2.2.1. Preparing the case for trial

After adopting the claim, the judge shall prepare the case for trial to ensure its timely and just resolution and perform the following actions: to request documents and other materials, examine written and material evidences on the scene, in case of impossibility to deliver them to the court, and appoint the forensic expertise, attract and summon the witnesses, experts, specialists and translators and conduct preliminary hearings. Moreover, the judge may take other actions to prepare the case for trial. Preparation of case for trial may not exceed two months from the time of accepting the claim for trial. Preparation for trial is a mandatory stage of administrative process (Article 121 of APC).

2.2.2. Preliminary hearings

Preliminary hearings shall be held to clarify the possibility of settling the dispute before the trial on the case and ensuring comprehensive and objective case resolution during the entire case review period. At preliminary court hearing, the court shall ascertain whether the plaintiff refuses the claim, or the defendant recognizes it, and explain the parties the possibility of reconciliation. In case of failure to settle the dispute, the court shall take the following actions: to clarify the claims and objections of defendant against the claim, verify whether the plaintiff missed the deadlines for appealing to court, clarify the composition of persons to participate in the case, ascertain if plaintiff affirms the claim and if defendant recognizes it, determine the facts that must be established to resolve the dispute and which facts are recognized by parties and which ones need to prove and ascertain which evidences the parties may use to justify their arguments or objections, and set the time limits for their submission. The parties in preliminary court hearing shall have the right to present evidences, give arguments and submit petitions (Article 125 of APC).

2.2.3. Administrative case consideration in court

Administrative case shall be considered and resolved within two months from the date of adopting the decision on completion of preparatory proceedings and assignment of the case for hearings. The litigation of administrative case shall be conducted as court session by summoning participants to the process and held within the court premises. The judge singularly hearing the case shall perform duties of presiding judge. The chair shall preside over the court by taking all measures to ensure equal rights of the parties and create necessary conditions for comprehensive, complete and objective examination of circumstances of the case. The presiding judge shall also ensure the compliance with procedures for court session, and clarify the rights and obligations including procedures for their implementation for all concerned in the trial.

2.2.4. Court decision

The first instance act, which settles the case on its merits, shall be issued in the form of court decision. The decision shall be made in the name of the Kyrgyz Republic (Article 171 of APC). The court decision shall have to be lawful and justified. The decision shall be considered as justified when it reflects the facts significance in that case and supported by evidences that meet the relevant requirements of the law on their relevance and admissibility, including reliability; when the decision contains exhaustive findings of the court arising from established facts (Article 172 of APC) .

The court shall make decision by verifying:

1) whether the administrative act complies with the Constitution, laws and other regulatory legal acts of the Kyrgyz Republic;

2) whether the administrative act is issued in compliance with administrative procedures provided for by law;

3) whether the procedures have been respected when adopting the subordinate regulatory legal act prescribed by law;

4) the competence of state authorities, local self-governments and their officials who adopted the disputed act;

5) whether the rights, freedoms and legitimate interests of a person who applied to the court are violated, or whether this person faces obstacles to exercise his/her rights, freedoms and legitimate interests.

2.2.5. Effective date of the court decision

The court decision shall enter into force upon the expiration of the term, if it has not been appealed. In the case of appeal, the court decision shall enter into force after hearing the complaint by court, unless the appealed court decision has been revoked. In case of cancellation or amendment of the first instance court decision by appealing the court ruling and adoption of new decision, it shall enter into force immediately.

Judicial acts shall be enforced after their entry into legal force in the manner set forth in the Civil Procedure Code of the Kyrgyz Republic and the laws of the Kyrgyz Republic on court enforcement proceedings (Article 277 APC of the KR).

At the request of persons involved in the case, the court may take measures to secure the claim. Securing the claim shall be permitted only when the court accepts the claim for proceeding at any stage of the case review, if failure to take such measures may make it difficult or impossible to enforce the court decision (Article 142 Civil Procedure Code of KR). Measures to secure the claim may include the prohibition to perform certain actions or an obligation to perform certain actions by defendant (Article 144 of Civil Procedure Code of KR). An application for securing a claim shall be considered by the court no later than the next day after receiving it by court without notifying the defendant and other persons involved in the case. The court (judge) shall decide on taking measures to secure the claim (Article 145 of Civil Procedure Code of KR). The ruling to secure the claim shall be immediately enforced in the manner prescribed by law (Article 146 of Civil Procedure Code of KR).