Objection of military service

Anyone who objects to military service (병역거부/兵役拒否) is subject to punishment.

Then what if he did it out of his conscience guaranteed by the Constitution?

Here is the conscientious objection of military service case (2002Hun-Ka1 decided August 26, 2004), in which the Constitutional Court held that the provision of the Military Service Act that punishes a person who objects to mandatory military service on the ground that it is against his conscience, is not unconstitutional.

Background of the Case
The Military Service Act provides that a person who is drafted for military service yet fails to enroll or report, with no justifiable cause, shall be punished by imprisonment for up to six (6) months or fine of up to two million (2,000,000) won.

The requesting petitioner is accused of violating the Military Service Act for failure to enroll for military service, while served with the notice of enlistment for active military service from the Commissioner of the Military Manpower Administration obligating him to enroll for active military service.

The requesting party petitioned the court to request constitutional review, claiming that the Military Service Act applicable to the accused facts of the underlying case infringed the freedom of conscience of those who objected to military service on the ground of their religious conscience. The court thereupon accepted the petition and filed a request for constitutional review with the Constitutional Court.

Summary of the Decision
The Constitutional Court, in a 7:2 opinion, held the Military Service Act not unconstitutional. The summary of the reasoning is as follows:

Majority Opinion
The public interest to be achieved by the legal provisions at issue in this case is the very important one of 'national security,' which is the prerequisite for the existence of a nation and for all liberty and freedoms. When such an important public interest is at issue, an immoderate legislative experiment that might harm national security may not be demanded in order for a maximum guarantee of individual liberty and freedom.

Considering the security situation of Korea, the social demand concerning the equity of conscription, and the various restrictive elements that might accompany the adoption of the alternative military service system, the current situation does not assure that the adoption of the alternative military service system will not harm the important constitutional legal interest of national security. In order to adopt the alternative military service system, peaceful coexistence should be stabilized between South Korea and North Korea, and the incentives to evade military service should be eliminated through the improvement of the conditions of military service.

Furthermore, a consensus among the members of the community that allowing alternative service still serves toward realizing the equality of the burdens in performing military duty and does not impair social unity should be formed, through the wide spread understanding and tolerance of the conscientious objectors within our society. The judgment of the legislators that the adoption of the alternative military service is presently a difficult task, where such prerequisites are yet to be satisfied, may not be deemed as conspicuously unreasonable or clearly wrong.

However, the legislators should seriously assess the possibility of eliminating the conflicting relationship between the legal interests of the freedom of conscience and the national security, and also the possibility of the coexistence of these two legal interests. Even if the legislators determine not to adopt the alternative military service system, the legislators should carefully deliberate whether to supplement the legislation so that the institution that implements the law may take measures to protect conscience through the application of law in a way favorable to conscience.

Dissenting Opinion

 * Justices Kim Kyung-il and Jeon Hyo-sook

It is undeniable that the conscientious objection to military service is based upon the earnest hope and resolution with respect to the peaceful coexistence of the human race. The ideal toward peace is something that the human race has pursued and respected over a long period of time. In this sense, the objection to military service by the conscientious objectors should not be viewed as the avoidance of hardship of military service or the demand of protection as free-riders while failing to perform the basic obligation to the state. They have been sincerely pleading for alternative ways to service as they can in no way perform military duty to bear arms.

The disadvantages they have to endure due to the criminal punishment for evasion of military service is immense. Also, in light of the gross number of our armed forces, the impact upon the national defense power of the military service by the conscientious objectors on active duty to bear arms is not of the degree that merits a discussion of the decrease in combat capabilities thereby. The duty of national defense is not limited to the obligation to directly form a military force to bear arms by, for example, serving the military pursuant to the Military Service Act.

Therefore, by imposing upon the conscientious objectors an obligation that is similar or higher thereto upon considering the time period and the burden of the military service on active duty, the equity in performing the duty of national defense may be restored.

Separate Concurring Opinion

 * Justice Kwon Seong

The faith of the petitioner is a religious one, thus the freedom of religion as well as the freedom of conscience is at issue. The Constitutional Court may not judge the legitimacy of the religious tenets, but it may only determine whether their effect upon society is acceptable in reality. Here, the objection to bear arms, which guarantees national security and the protection of national territory, is impermissible under our constitutional order. On the other hand, the external expression of the freedom of conscience that is not based upon religion is subject to restrictions, and the permissibility of the restriction depends upon whether the conscience has universal validity. Justice Kwon Seong pointed out that there is an extremely thin possibility that refusing to bear arms required to defend against an unjust and unrighteous war of aggression can be judged as an ethical determination that is in conformity to human dignity.

"There is sufficient recognition that the natural perception of ordinary people across nations and throughout history is that they would feel much ashamed if they could not bear arms due to the order of their conscience, when the bearing arms is to preserve national territory and the constitution, to fight against the killing and wounding of themselves, their families and their loved ones, and to prepare for such resistance. Furthermore, such perception can sufficiently be recognized as proper upon rational thinking of our reason.

Taking no measure upon witnessing the killing and the wounding of one's parents, siblings, spouse and children is suspicious of the lack of benevolence (인/仁) due to the destitution of the feeling of commiseration (측은지심/惻隱之心); Feeling no fury upon witnessing such killing and wounding is under suspicion of the lack of righteousness (의/義) due to the destitution of the feeling of shame and dislike (수오지심/羞惡之心); Remaining solely at the indulgence in the safety earned as the result of hardships and sacrifices of other people is under suspicion of the deviation from propriety (예/禮) as it lacked the feeling modesty and complaisance (사양지심/辭讓之心); Turning the face away from the danger of invasion that is sufficiently predicted yet not imminent is suspicious of the lack of wisdom (지혜/智慧).

A conduct that is suspicious of lacking benevolence (인/仁), righteousness (의/義), propriety (예/禮) and wisdom (지/智) as such may not be recognized to have universal validity.

Therefore, refusal to bear arms that is necessary to defend a war of aggression or to prepare such defense may not be recognized as the voice of conscience that has universal validity.

It was not because Yulgok Lee Yi (율곡 이이/栗谷 李珥) lacked conscience or was belligerent that he petitioned to raise 100,000 soldiers in 1583, ten years prior to the outbreak of the Korean-Japanese war of 1592. Nor is it because those many young persons in military service are lacking in conscience or are belligerent that they bear arms and offer sacrifice in the military. It is not because of the lack of conscience or the sake of enjoyment of war that the United Nations commits the peace-keeping corps to subjugate the entity committing cruel ethnic cleansing.

Therefore, it may never be deemed as the voice of universally valid conscience to refuse to bear arms for defensive purposes. Even considering the future, this conclusion will remain unchanged for at least a considerable period of time. Then, the act of refusing to bear arms lacks universal validity even if it is based upon the voice of conscience, as far as the bearing of arms is not demanded to conduct a war of aggression. Thus, the constitutional protection therefor may be restricted. It may be limited by the statute when necessary for the guarantee of national security, the maintenance of order, or public welfare."

Here, the objection to bear arms, which is to defend against unanticipated aggression may hardly be deemed as conscience with universal validity. In addition, the recommendation of the majority opinion to assess alternative civilian service is inappropriate under the principle of separation of powers.

Separate Concurring Opinion

 * Justice Lee Sang-kyung

It may hardly be deemed that the conscientious objectors have also given up the protection of themselves by free-riding on others' obligation to serve the military. Then, whether the conscience of those who object to the military service on the ground of conscience may fall within the meaning of conscience that is the object of constitutional protection is itself questionable, as such conscience is no more than a hope that is an antinomy, which lacks consistency and universality.

Therefore, punishing those who object to military service on the ground of conscience is not beyond the external limit of justice. The recommendation for the legislators upon legislative matters with respect to the alternative military service system, which is irrelevant to the subject matter of review of this case, is not appropriate as it is beyond the limit of judicial review.

Aftermath of the Case
This decision, along with the Supreme Court decision of July 15, 2004 that affirmed the punishment of the conscientious objectors, brought an end to the legal debates over the conscientious objection. The conscientious objectors thereupon sought relief from the United Nations Human Rights Commission. On the other hand, a bill for the revision of the Military Service Act in order to legislate the alternative military service system was submitted to the National Assembly.