Ban on Wearing Headscarves in School Has Not Been Lifted: Supreme Court Clarifies Position

The Supreme Court of Kazakhstan has clarified the situation surrounding the high-profile dispute over wearing headscarves in schools, Orda reports, citing the press service of the judicial body. The press service has stated that reports claiming that the Supreme Court has recognized wearing headscarves in schools as legal are untrue.

Yesterday, 25 September 2024, lawyer and human rights activist Zhaslan Aitmaganbetov told an Orda.kz correspondent that the Supreme Court had overturned a regional court's decision, recognizing that this restriction violates young girls' right to receive an education.

While the ministry was combating headscarves, the number of suicides and violence among children increased in Kazakhstan, which is grim. In any case, it is encouraging that the judiciary looks at the norms of the law, and not at the position of one ministry,  said the lawyer.

The lawyer emphasized that in September 2023, the Ministry of Education carried out "an unconstitutional and illegal enforcement" by introducing a mandate banning the wearing of headscarves in schools.

I call this initiative an enforcement because it happened in one day in all schools and unofficially. They ordered not to let children who wear headscarves into school. I want to emphasize that it was not the hijab or niqab, but headscarves. In all cases where we defended the rights of our clients, the schoolchildren followed the dress code according to the mandate but had the only additional accessory as a headscarf, which is incorrectly considered a hijab or a religious attribute, the human rights activist explained.

According to him, the Supreme Court Judge requested an expert examination to determine whether the headscarf is a religious attribute.

It is impossible to prove that a headscarf is a religious attribute. It turns out that my clients did not violate the Ministry of Education mandate, as no one wore a hijab. Children were not allowed into schools in different regions of the country. We, lawyers, were able to take on as many cases as we could, Aitmaganbetov added.

The court proceedings lasted a year and concerned the West Kazakhstan, Turkestan, Pavlodar, Almaty, and Qaraganda regions. 

The court did not find any violation on the part of children who came to school wearing headscarves. At the same time, in four of the regions listed, the courts adhere to a similar position that no one has the right to restrict children in obtaining knowledge, summed up Zhaslan Aitmaganbetov.

However, The Supreme Court's press service has stated that the alleged recognition of wearing headscarves in schools as legal is untrue. They noted that the judicial panel for administrative cases did not consider the legality of wearing a headscarf in an educational institution.

The cassation court only recognized as illegal a school’s refusal to allow a student to attend classes, as the right to education is one of the fundamental constitutional rights of citizens of Kazakhstan, the message says.

The department added that the authority to approve the requirements for mandatory school uniforms remains with the relevant ministry. The relevant mandate has not been recognized as illegal or revoked. 

Meanwhile, parents are required to comply with the requirements for school uniforms.

Failure of parents to fulfill their assumed and legally established responsibilities for the upbringing and education, protection of the rights and interests of children entails liability established by law, including that provided for by the Code of Administrative Offenses,
 The press service reported.

Political scientist Gaziz Abishev later explained what the Supreme Court's comment could mean.

As Gaziz Abishev noted, the Supreme Court commented on the recent decision on the illegality of not allowing students to attend classes based on their religious beliefs.

A number of passionate supporters of religion perceived this decision as an unconditional permission to attend classes with their heads covered contrary to the rules established by the Ministry of Education. However, today the Supreme Court of the Republic of Kazakhstan clarified its position. It is noted that the decision on the illegality of discrimination on religious grounds does not mean the illegality of the Ministry of Education's policy regarding headscarves. How should this be understood? the expert says.

He makes the following conclusions:

• Education is a sacred right of all citizens, regardless of religious beliefs. However, the state has the right to establish regulations for providing educational services, such as the time and duration of lessons.
• As a secular institution, the school has the right not to provide a break for prayer for those who wish to do so. 
• List of subjects taught - Committed to classical science, a school favors the theory of evolution over creationism.
• School uniform - Being secular, a school requires a certain secular dress code, not welcoming overtly religious attire.

In other words, secular officials view the persistent wearing of religious attire that significantly deviates from the established dress code as, in a sense, an ongoing religious ritual that is unacceptable in a secular school, Gaziz Abishev clarifies.

Education is not only a right, but also a duty, regardless of religious beliefs. Parents are obliged to ensure that their children are educated in secondary schools per the legal regulations of these schools. Refusal to fulfill obligations to provide children with secondary education is a violation of the provisions of the Republic of Kazakhstan's Constitution. 

These regulations may be revised. It is a matter of a complex socio-political discussion involving interested parties. Some complex agreements between the secular regime and the religious part of the population, which could allow the parties to show flexibility, are necessary. This is possible, but until such a compromise is found, it is necessary to follow the rules established by the Constitution and laws. 

The topic is complex and requires a responsible humanistic discussion. Of course, everyone: teachers, parents, and children - must comply with the law. However, it is necessary to continue to search for models of interaction that would cause as few contradictions as possible, the political scientist believes.

In Kazakhstan, the discussion about wearing a hijab and headscarf in schools has long been topical. A year ago, President Qasym-Jomart Toqayev commented on this matter, saying: "Kazakhstan is a secular state, and this principle must be strictly observed in all areas, including education." Freedom of religion is guaranteed by law, but the head of state noted that children must make their own choices when they grow up.

Aida Balayeva, the Minister of Culture and Information, also previously commented.

Original Authors: Raushan Korzhumbekova, Anastasia Prilepskaya, Olga Ibraeva

DISCLAIMER: This is a translated piece. It is a combination of three separate articles. For accuracy, please refer to articles 1, 2, and 3 published in Russian on 25-26 September 2024.