Participation of children in the activities of religious organisations under the legislation of the Kyrgyz Republic

1. Peculiarities of the normative regulation of the participation of children in the activities of religious organisations

Religious freedom of minor children remains one of the undefined issues in the legislation of the Kyrgyz Republic. In our opinion, the legislation of the Kyrgyz Republic regulates in detail the concept and types of religious activities that are typical for adult citizens, however, there are no detailed regulations for the participation of children in the activities of religious organisations, which would take into account the existing religious practice in the country. At the same time, recently there have been conflict situations related to the implementation by minor children of their right to freedom of religion. Such situations usually arise for the well-known reasons - ignorance of persons of their rights and obligations or insufficient normative regulation of social relations in the sphere of religion. Frequently discussed problems are the wearing of religious paraphernalia in general education schools, parents’ refusal to educate their children in general education schools due to religious beliefs, children's refusal to attend certain school subjects (physical education, singing, drawing). In tackling this issue, it is very important to take into account the individual characteristics of the younger generation.

In the process of raising children in a religious family or religious community, adults shall bear full responsibility for developing in their minds a sense of mutual understanding and dialogue in relation to other faiths and cultures in a multi-ethnic and multi-confessional State, such as Kyrgyzstan (Preamble to the Convention on the Rights of the Child). This requires, first of all, the recognition that children also have a religious faith, a religious sense and compassion for their fellow believers and their ideas about God. Perhaps the religious beliefs of children are not as deep as those of adults, however, it is more emotional in nature and is one of the main factors in the formation of personality.

To date, the participation of children in the activities of religious organisations remains one of the most discussed and poorly regulated issues in the legislation of Kyrgyzstan, and the current legal provisions are abstract in nature, causing ambiguous interpretation, or are not amenable to interpretation. Nevertheless, in this article, we will try to clarify their significance and meaning. It is important to note that the analysis of legal acts regulating issues of freedom of religion should always be carried out not only within the framework of positive law, but also on the basis of the doctrine of natural human rights.

2. The difference between the concepts of “participation” and "involvement" of children in a religious organisation

Before elaborating on the objectives set out in this article, it is necessary to mention the difference between the concept of “participation of children” in the activities of religious organisations (Article 14 (1)) and the concept of “involvement of children” in religious organisations (Article 4 (5)). The first concept refers to the rights of children to freedom of religion, while the second concept is a prohibitive provision for actors/subjects of religious relations.

Firstly, if we look at the grammatical interpretation of these concepts, they have completely different semantic meanings. Thus, “participation” is voluntary assistance or cooperation in the implementation of something, i.e., participation requires independent, active and purposeful actions on the part of the person involved. One of the features of this action is the absence of external influence, or the influence can be informative and cognitive in nature. “Involvement” is an invitation or inducement to some action or activity and requires proactive actions by the “involved person” in relation to the “person who is being involved”.

Secondly, logical and specific legal ways of interpreting the provisions of the legislation in the field of freedom of religion in the Kyrgyz Republic make it possible to see the difference between these concepts. Thus, one of the main types of children's participation in religious activities is their presence during worship, which is defined as a set of religious ceremonies and actions performed by clergy according to the rites and requirements of the religious teaching (sub-paragraph 1, paragraph 1, Article 3). It can be, for example, religious prayers and rites. Prayer is a person’s appeal to God, gods, saints, angels, spirits, and the Supreme Being in general, for example, in Islam it is Namaz, prayer using balls or corals in Hinduism, verbal (thanksgiving) or petitionary prayers in Orthodoxy and others. Rites are a set of actions established by the religious teaching, in which religious ideas are embodied (sub-paragraph 11, paragraph 1, Article 3). For example, in Islam, this is a rite of ablution before prayer, an Islamic funeral rite - “Janaza”, a rite of blessing water for baptism in the Orthodox faith, etc. Here, children do not take an active role in worship, they do not perform worship or rites as a clergyman (sub-paragraph 14, paragraph 1, Article 3), they voluntarily take part in such events. At the same time, control over the relationship of children with any religious organisations is entrusted to parents, legal guardians or persons in loco parentis.

Article 4 (5) of the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organisations in the Kyrgyz Republic” establishes that “children may not be involved in religious organisations”, however, the problem is that the regulatory sources do not disclose the concept and detailed regulation of this provision. Based on the analysis of regulatory legal acts, the above provisions can be interpreted as a ban on the involvement of minor children in certain types of religious activities of religious organisations. We will further elaborate on this topic in our analysis.

3. Main areas of participation of children in the activities of religious organisations

One of the types of children’s participation in the religious activities of religious organisations is the participation of children in worship services. Participation of children in worship services can only be in worship conducted by religious organisations registered in accordance with the procedure established by the legislation of the Kyrgyz Republic (Article 8 (1)) and controlled by parents (Article 36 (3)), voluntarily without any physical or psychological coercion (Article 4 (3)) and without prejudice to the educational process (Article 26 (7)).

The positive aspects of children’s participation in worship services are that they learn about moral and traditional religious values, and religious facilities are now becoming an arena for communication between representatives of various ethnicities and ages who have spiritual affinities (Article 20 (3)). However, children’s participation in worship services must not prevent them from fulfilling their compulsory schooling obligations, therefore parents are obliged to create all conditions for their children to receive such education and, if they so wish, to master the moral and educational values of religion.

The next area of children's participation in the activities of religious organisations is their religious education and upbringing. Minor children may receive religious education in religious educational institutions or religious instruction in religious educational courses at religious organisations registered in accordance with the procedure established by the legislation of the Kyrgyz Republic (Article 8 (1)). For this purpose, religious organisations shall have the right, in accordance with their Charters, to establish and maintain religious educational institutions financed from their own funds, using their own premises for the religious education of children and adults (Article 6 (3)). Further, the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organisations in the Kyrgyz Republic” establishes that “... 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 Kyrgyz Republic “On Education”” (Article 6 (5)). School education is the basic element in the education system and comprises 3 levels - primary general, basic general, secondary general education (Article 5 (1), Article 16 (1)), of which:

- primary general education - grades 1-4;

- basic general education - grades 5-9;

- secondary general education - grades 10-11.

In our opinion, the Law of the Kyrgyz Republic of December 31, 2008 “On Freedom of Religion and Religious Organisations in the Kyrgyz Republic” contains some concepts that do not comply with the current Constitution of the Kyrgyz Republic and the Law of the Kyrgyz Republic “On Education”.

Firstly, Article 6 (5) of the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organisations in the Kyrgyz Republic” specifies the concepts of “higher” and “secondary” religious educational institutions, however, there are no definitions of these concepts in the legislation of the Kyrgyz Republic in the sphere of religious freedom and religious organisations.

Secondly, Article 6 (5) of the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organisations in the Kyrgyz Republic” uses the concept of “compulsory general secondary education”. However, in Article 16 of the Law of the Kyrgyz Republic “On Education” there is no such level of education. Thus, Article 6 (5) of the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organisations in the Kyrgyz Republic” creates a lot of ambiguities and discrepancies in law enforcement practice, which should be eliminated by the legislature.

Further, Article 46 (2) of the Constitution of the Kyrgyz Republic states that “Basic general education is compulsory”. This means that every citizen of the Kyrgyz Republic must receive a 9-year education in a general education institution. However, according to Article 16 (1) of the Law of the Kyrgyz Republic “On Education” “Primary general education, basic general education, secondary general education are compulsory levels of education for all citizens of the Kyrgyz Republic”.

Thus, based on the above, the following conclusions can be drawn, Article 16 (1) of the Law of the Kyrgyz Republic “On Education” and Article 6 (5) of the Law of the Kyrgyz Republic “On Freedom of Religion and Religious Organisations in the Kyrgyz Republic” contradict Article 46 (2) of the Constitution of the Kyrgyz Republic, which states that “Basic general education is compulsory” for all persons in the Kyrgyz Republic. This means that no state body, on the basis of any regulatory legal acts, has the right to regulate the education of children or other activities after they have received basic general education. Further, Article 2 (2) states that “Laws and other regulatory legal acts that were effective on the territory of the Kyrgyz Republic prior to the entry into force of the Constitution as amended by this Law shall be applied insofar as they do not contradict the said Constitution.”

Hence, according to the aforementioned grounds, minor children after graduating from basic general education, i.e., after completing 9 years of schooling, shall have the right to enrol in religious educational institutions and receive religious education, and according to the logic of the provision of the Constitution of the Kyrgyz Republic, no one shall have the right to prevent them or force them to obligatorily attend the 10-11th grade.

In addition, various courses on religious upbringing and education are currently organised in the country by religious organisations in the form of supplementary education for children (Article 1). The content of such religious educational courses and special educational programmes is determined by the parties when contracts are concluded between parents (legal representatives) and a religious organisation. The activities of religious courses and religious educational camps for children are part of the system of religious upbringing and education for minor children, formed by the religious organisations themselves.

Thus, in Kyrgyzstan, children may participate in worship services, religious rites and ceremonies, receive religious education after completing basic general education, and attend religious courses and religious educational camps. However, they may carry out all these activities with the permission of their parents, legal guardians or persons in loco parentis.

4. Restrictions on the participation of children in certain types of activities of religious organisations established by law

There are certain activities of religious organisations in which the participation of minors shall be restricted. For example, persons who have reached the age of majority shall have the right to participate in the establishment and formation of religious organisations (Article 8 (3)), as well as in the accounting registration of religious organisations (Article 10 (1)), accounting registration of missions (representative offices) of foreign religious organisations in the Kyrgyz Republic, accounting registration of foreign citizens (missionaries) arriving in the Kyrgyz Republic for the purpose of religious activities and accounting registration of religious educational institutions (Article 13 (1)).

Thus, according to the logic of the legislation regulating the activities of religious organisations and freedom of religion, activities related to the establishment and functioning of religious organisations refer to persons with full legal capacity, legal competence and capacity to act. Minor children are consumers of spiritual products produced by subjects/actors of religious relations, and the motivation for participating in these activities is religious beliefs, religious convictions, religious feelings and children’s needs.

The task of the State is to control the activities of religious institutions, which are the main bearers of religious beliefs and values. Therefore, religious education and religious instruction should be harmoniously combined with the modern general education system, and the formation in the minds of children of a sense of tolerance for all cultures, religions, nationalities and their adaptation to the conditions of a multi-ethnic and multi-confessional society.