A South Korean judge again filed a petition with the Constitutional Court on the constitutionality of the country's Military Service Act in the case of a conscientious objector who refused military service, JoongAng Daily reported on 10 September 2009. The judge claims that clause 1 of article 88 of the Military Service Act - "If a person who has received a draft notice for active duty or Notice of Summons (including Notice of Summons for voluntary enlistment), without justifiable cause, does not report for service within the period specified in the following clauses or refuses the summons, then he shall be sentenced to a prison term of three years or less." - conflicts with Article 19 of the South Korean constitution, which guarantees freedom of thought, conscience, and religion. “The clause in the military service act is unconstitutional by excessively violating freedom of conscience by forcing conscientious objectors to do their military duty and then punishing them,” the judge said.
“Legislators are responsible for creating alternatives to resolve the conflict,” Judge Park said, arguing that punishing conscientious objectors without providing any alternative forms of national service violates the principle that infringements upon basic rights must be minimised.
The country's Constitutional Court last dealt with the question of conscientious objection in 2001.
While the Court ruled back then that clause 1 of article 88 of the Military Service Act is constitutional, it also made some recommendations to the legislator: "The legislator has the duty to relieve the conflict in conscience by providing, to the extent that freedom of conscience specified in Article 19 of the Constitution does not damage public interests or legal order, alternative plans such as other possible options that can take the place of the legal duty or case-by-case exemptions from the legal duty, and if he can not provide such options, then he should at least consider if mitigation or exemption in punishments and penalties imposed for violating the duty can be permitted in order to protect the freedom of conscience.
Therefore, the legislator should earnestly consider whether there is a plan that can relieve the conflict between freedom of conscience and the public interest of national security and make the two interests coexist in harmony, whether there is an alternative plan that can protect the conscience of objectors to military service while preserving the public interest of national security, and whether our society has matured to the point where it can now show understanding and tolerance toward conscientious objectors, and even if the legislator decides, upon further review, to not adopt a system of alternative service, it should be considered whether the legislature would move in a direction to help protect conscience by having organizations that apply the law act in a manner that is legally more friendly to conscience."
Since then, the Human Rights Committee of the United Nations has decided on two individual complaints from South Korea. In its decision on Yeo-Bum Yoon and Mr. Myung-Jin Choi vs. Republik of Korea, the Human Rights Committee came to the conclusion that not to provide for conscientious objection is a violation of the right to freedom of thought, conscience, and religion.
Since then, the former South Korean government had originally announced in September 2007 to introduce the right to conscientious objection. However, the present government backtracked on this promise, citing opinion polls as an excuse.
Presently, almost 500 individual complaints of conscientious objectors are pending at the Human Rights Committee. These, plus the new petition to the Constitutional Court, might increase pressure on the South Korean government to finally comply with its obligations under the International Covenant on Civil and Political Rights and to recognise the right to conscientious objection.
Sources: JoongAng Daily: Draft dodger reignites row over military duty, 10 September 2009; War Resisters' International: Country report and updates: Korea, South, 23 March 2009; War Resisters' International: South Korea: Constitutional Court decides against right to conscientious objection, CO-Update No 1, September 2004; Constitutional Court of Korea: Decision of the Constitutional Court of Korea on Conscientious Objection, 26 August 2004; War Resisters' International: Landmark decision of UN Human Rights Committee on right to conscientious objection, CO-Update No 27, February 2007; Human Rights Committee: Communications Nos. 1321/2004 and 1322/2004 : Republic of Korea. 23/01/2007. CCPR/C/88/D/1321-1322/2004. (Jurisprudence); War Resisters' International: South Korea to legalise conscientious objection, CO-Update No 33, October 2007; War Resisters' International: South Korea: No rights for conscientious objectors, CO-Update No 44, January 2009