A South Korean appelate court has again asked the Constitutional Court to rule whether article 88 paragraph 1 of the South Korean conscription law, which makes conscientious objection to military service illegal, is unconstitutional. This move comes at a time when the South Korean government is delaying the implementation of a law on conscientious objection.
On September 5, the Chuncheon District Court said it had asked the Constitutional Court to rule on whether Article 88, Section 1, of the conscription law violates the Constitution because it makes it illegal to be a conscientious objector. This is the first time in six years that the Constitutional Court was asked to rule on whether the law is unconstitutional. Ahead of the request, the Chuncheon court allowed a 21-year-old man, who is identified by his surname Park and was
sentenced to 18 months in jail by a lower court on charges of violating the conscription law, to be released from prison on bail in August. The Chuncheon court is involved in appeals trials involving four conscientious objectors, including Park.
The Chuncheon court pointed out that Article 88, Section 1, of the conscription law allows for the possibility that freedom of conscience could be undermined by not allowing for conscientious objectors. In particular, the court said it decided to ask the Constitutional Court to rule on the matter because the Defense Ministry has recently rebuffed a plan to revise military service laws so that conscientious objectors would be allowed to perform alternative forms of service.
“The Constitutional Court has advised the country to allow alternative forms of military service and conscientious objectors have been waiting for an introduction of an alternative service program for decades,” said an official at the Chuncheon court. “There were once hopes about alternative service, but those hopes were dashed on the grounds that there had been a change in the social mood,” the official said.
In 2004, the Constitutional Court ruled in a 7-2 vote that alternative military service would not violate the Constitution and advised the government to allow conscious objectors to perform alternative forms of service. At the time, the government also worked to introduce an
alternative service program. However, at that time the Constitutional Court did not fine that not to provide for the right to conscientious objection is unconstitutional (see CO-Update No 1, September 2004).
In January 2007, the United Nations Human Rights Committee decided on two cases from South Korea and said that not to provide for the right to conscientious objection in fact constitutes a violation of Article 18 of the International Covenant on Civil and Political Rights (see CO-Update No 27, February/March 2007).
While trials had been delayed for a while in expectation of the Korean government passing a law on conscientious objection, the trials resumed again in July when the Ministry of Defense was known to be reconsidering the idea.
Attention is also being focused on Constitutional Court President Lee Kang-kook, who was a chief justice of the Supreme Court at the time of a 2004 case involving a conscientious objector and submitted a minority opinion in favor of the right to be one. “Punishing someone
accused of refusing military service on religious grounds undermines human dignity. In addition, it does not fulfill the original purposes for punishment such as crime prevention and education,” Lee said in his opinion. “It would be desirable for freedom of conscience to be respected and guaranteed.”
The Defence Ministry reiterated that it will base its decision on public consensus regarding whether or not to allow an alternative form of service for conscientious objectors. The ministry also said the Military Manpower Administration selected a research agency last month to gauge public opinion on whether to allow an alternative to conscientious objectors. The research is due to be completed by 20 December 2008.
The selected research agency will conduct a survey and a public hearing on whether to allow alternative service and will present their findings to the Military Manpower Administration. The manpower agency and the Defense Ministry plan to make a final decision on the matter early in 2009.
About 420 conscientious objectors have been arrested for violating Article 88, Section 1, of the conscription law, according to data collected by an organization of families of conscientious objectors who have been arrested. Another 100 conscientious objectors are in the midst of trials without detention. Hong Young-il, the leader of the organisation, said that since the Defense Ministry expressed a negative view about the possibility of allowing conscientious objectors to
perform alternative forms of service, there have been additional convictions.
Sources: The Hankyoreh: Appellate court asks that conscientious objector code be made unconstitutional, 6 September 2008, KBS WORLD Radio: Conscientious Objector Ruling to Come in 2009, 8 September 2008