Case on Conscientious Objectors

[2011Hun-Ba379 et al. June 28, 2018] * First Draft

1. Court Opinion

The Constitutional Court found Categories of Military Service Provision nonconforming to the Constitution on the ground that it stipulated the categories of military service only as five items not including Alternative service. The five items are: Active duty service, Reserve service, Supplementary service, Preliminary military service, and Wartime labor service. The Court’s decision is summarized as follows.

Categories of Military Service Provision have a purpose to ensure national security by imposing military duty equally and retaining and allocating military service resources efficiently. Therefore the provision itself is an adequate means to fulfill the reasonable legislative purpose.

Since types of military service stipulated in Categories of Military Service Provision are all set upon the premise of receiving military trainings, it may cause conflict with the conscience of the conscientious objectors, if they are imposed of such military duty. As such, the possibility of Alternative service has long been examined

The number of conscientious objectors is not large enough to discuss the decrease of military service resources, and even when punishing the objectors, they will be imprisoned in the correctional facility not utilized as military resources. Thus, the permission of Alternative service program will not generate the loss of military resources. Also, when considering the fact that the importance of military service resources in the entire national defense system has been decreasing, it is hard to find that introducing Alternative service program will have significant influence to the national defense power of Korea.

Provided that an objective and fair preliminary examination and a strict post management procedure are regulated by the government and equity between Active military service and Alternative service regarding the level of difficulties and duration is acquired, thus removing the causes of evading military duty, the problem of increase in abuse by draft evaders feigning conscience and the difficulties in determining whether a refusal of military service is based on genuine conscience will be solved. Accordingly, it is possible to retain the equity of military duty even after the introduction of Alternative service.

As long as the introduction of Alternative service system does not have significant influence on the national defense, or it does not reduce effectiveness of military service system, as stated earlier, holding or preventing the introduction of Alternative system on reasons of the unique security situation of the nation cannot be justified. Therefore, Categories of Military Service Provision runs against the rule of minimum restriction for categorizing military services that entail military training and not including the Alternative service program.

Although the public interests, such as ‘national security’ and ‘equity or fairness in the allocation of military duties’ are significantly important, it can also possibly be accomplished by adding Alternative service system to Categories of Military Service Provision. By contrast, without stipulating Alternative service program in the Provision, conscientious objectors have to be imprisoned for more than a year and a half, and are left to suffer immense disadvantages, such as dismissal and restriction from working as public officials, loss of patent, permission, approval, license from the government, disclosure of personal information, implicit and unconscious bias upon ex-convicts, and difficulties in finding jobs, and etc. Provided that conscientious objectors are assigned to public service work, it will have broader meaning of realizing national security and provide more efficient ways to accomplish public interests than just imprisoning the objectors for the punishment. In addition to this, the societal and national level of integration and diversity will be increased as well. Thus, it is considered that Categories of Military Service Provision does not fulfill the requirement of balance between the public and private interests.

Accordingly, Categories of Military Service Provision, which did not stipulate Alternative service program for conscientious objectors, infringes on objectors’ freedom of conscience by violating principle against excessive restriction.

In 2004, the Court urged the legislature to review the alternatives that can ensure the public interest of national security as well as conscientious objectors’ freedom of conscience. However, the legislature did not make legislative progress for the past 14 years. During that time, several governmental organizations, such as National Human Rights Commission of Korea, Ministry of National Defense, National Assembly, and etc. have reviewed or recommended the introduction of Alternative service program. Also, an increasing number of ordinary lower courts’ judgments announced that conscientious objectors are not guilty. By considering all these circumstances, the government shall not put aside such issue and is obliged to remove the situation of infringement of fundamental rights with the introduction of the Alternative service program.

In a democratic decision making system where majority decides, the true way to realize the spirit of democracy that upholds tolerance and diversity is to give careful attention to the ‘Minorities,’ people who think different from the majority group.

2. Aftermath of the case

After the Court’s decision, active and heated discussion over introducing Alternative service system for conscientious objectors has increased. The media reported that setting an objective and fair preliminary examination and a strict post management procedure regulated by the government and determining ad adequate duration and the level of difficulties that can ensure the equity between Active military service and Alternative service are the primary concerns of the public (Yonhap News, July 5, 2018).

The deadline for amendment to the Military Service Act, which ought to stipulate the introduction of an alternative service system for those who refuse to join the military based on their religious beliefs or conscience, is set as no later than December 31,

2019.

* This translation is provisional and subject to revision.