On June 28, 2018, the Constitutional Court of Republic of Korea (ROK) ruled that Article 5 of Military Service Act was incompatible with the constitution. It is a result of conscientious objectors’ continuous appeal to the constitutional court for the implementation of alternative service. Conscientious objectors are people who are obligated to serve in the military yet reject the obligation because of their religious faith or pacifist values. Before now, these objectors were sentenced to prison for their refusal to serve. However, the recent decision by the constitutional court means that future legislation will provide the choice of alternative service instead of incarceration. While this is good news for conscientious objectors, the implementation of alternative service may make the maintenance of the Korean military difficult, and create controversy about the classification of alternative service subjects.
Constitutional Court’s Decision: Context and Implications
On December 1, 2011 conscientious objectors requested a constitutional appeal regarding Military Service Act. On 27th that month, the constitutional court accepted the appeal on Article 5 no.1 and Article 88 no.1 of that act. Last month, almost 7 years later, the Constitutional Court finally ruled the constitutional appeal. They ruled that punishing people for evading mandatory military service was constitutional. However, they added that Article 5 (Categories of Military Service) of Military Service Act was incompatible with the constitution. Article 5 designates that there are three categories in military service: active, reserve, and supplementary. The reason for its incompatibility was the exclusion of alternative service in this category. This decision means that although the article is a violation of the constitution, it remains in effect until its revision. Thus, the constitutional court’s decision can prevent possible confusion while the national assembly makes necessary revisions. The due date for the revision is December 31, 2019. If the deadline passes without necessary changes, the article will lose its power.
This decision also signifies changes to both currently ongoing criminal trials and past sentences. For ongoing criminal cases of conscientious objectors, it is up to the supreme court to set an example. On August 30, 2018 the supreme court is scheduled to carry out a plenary body case regarding conscientious objectors. A plenary body judgement is a procedure in which two-thirds of the supreme court members decide the sentence together in order to establish a representative precedent. The resulting sentence will influence all relevant cases. However, dealing with past convictions of conscientious objectors is not as straightforward. For now, those in incarceration stay in their current places. It is up to the national assembly not only to make revisions, but also to set the range of retroactive application of the revised military law. If they allow the new law to retroactively influence all past cases, retrials will be opened, overturning past convictions. Also, incarcerated objectors will receive financial compensation for their time in prison. However, as the specific plans for incarcerated objectors are not revealed yet, convicted conscientious objectors are still watching and waiting.
Currently, the Military Manpower Administration is conceptualizing follow-up measures. Until the implementation of alternative service, enlistment of conscientious objectors is postponed. Also, the administration is outlining the details of alternative service. To name a few, working for twice the period of active military service, and living together in their assigned workplaces such as national special hospitals and public nursing homes for the elderly.
The context of this court decision is as follows. The violation of human rights of conscientious objectors was the main issue. UN Human Rights Commission recommended the implementation of alternative service, and so did Korea’s Human Rights Commission. They pointed out the negative influence that incarceration and fines from avoiding reserve service have on conscientious objectors’ economic life. As a result, this issue was introduced as one of the 10 human rights assignments that the new presidency would focus on. These instances show that social recognition of human rights, or at least the viewpoint of authorities, has changed a lot over the years. And this change appears to have influenced the constitutional court’s decision to allow alternative service.
Most recently in 2011, the constitutional court denied alternative service, stating that the dire situation of being a divided nation required all able bodied men to serve in the military. That situation hasn’t changed much, yet recently the judges viewed “not allowing alternative service is a violation of the principle of proportion and an excessive restriction of the freedom of conscience. Thus, this issue can be resolved by the revision of Article 5 of Military Service act.” The crucial difference of this appeal from those of the past was the inclusion of Article 5 as a subject of judgement. The constitutional court was able to circumvent the constitutionality of Article 88, which is necessary to prevent uncontrollable increase of draft evaders. Instead, they challenged the constitutionality of Article 5, reaching a tactical compromise that made alternative service possible. As a result, the court achieved its purpose of insuring human rights while preventing draft evaders from escaping punishment at the same time.
Controversy Surrounding the Decision
Still, the controversy surrounding the decision is fierce. Those who support the ruling point out that more and more people are refusing mandatory military enlistment based on pacifist values. Around the world, refusing to serve in the military is a political outcry against war, and incarceration equals silencing that outcry with force.
Furthermore, they believe alternative service can be a practical solution for human issues in the army, rather than their ruin. Taiwan maintains a mandatory military system just like Korea. They are currently employing alternative service during times when their are excessive draft subjects. According to authorities, the existence of alternative service is a rival to military service, resulting in the more active insurance of human rights in the military. Also, Taiwan authorities strictly examine volunteers for alternative service through clear conditions and in-depth interviews, preventing misuse of the new system.
However, people who oppose alternative service state that ROK is a divided country with the ever-present possibility of war. Accordingly, every able-bodied enlistment subjects should be mentally and physically trained for combat. Also, controversy regarding equity is inevitable. If alternative service is too long or environmentally inferior compared to military service, or the opposite, controversy will follow. Finally, they argue that it is not so easy to classify conscientious objectors in reality even if standards are set, because dealing with a person’s beliefs and ideals is an abstract process. Some might get away with abusing the legislation to not serve in the military. And here’s the question: why not implement a voluntary military system instead?
According to Yong Dae-sung (18, Dep of English literature and American Studies), active service means a break in academics and employment. He points out that “students have to study the subjects they did before military service again because there was a long absence in between.” Also, he believes that classifying candidates for alternative service will be difficult because some people will ‘prepare’ for it, and that differentiation of conditions between active service and alternative service is necessary in preventing possible misuse. And if the duration of alternative service doubles that of active service? “I will choose Active Service because time is important.” Lee Hyun-joon, a former active service performer, knows the hardships of military service and agrees there should be differences in condition. However, he believes the duration of alternative service and other conditions should be made with consideration to avoid being a punishment for conscientious objectors. In regard to implementing volunteer military system, they both agreed that it would prevent controversy, besides the fact that it would need discussion regarding effective maintenance of a strong military as a divided nation.
Alternative Service VS Volunteer Military System
Compared to implementing alternative service, implementing volunteer military system has great advantages. First, there is no controversy about equity. The military can offer more benefits for military volunteers not only because the number of applicants will be smaller than that of a conscription military system, but also because there are no other groups to protest the differences in treatment. Volunteers will get the reward they deserve regardless of age, gender, or race. Second, it can insure the human rights of conscientious objectors. There is no need for incarceration, imposing fine from avoiding reserve service, nor long period of alternative service. Finally, the military will ensure and manage human rights issues within the military, which would encourage volunteers.
Although alternative service is a step toward protecting human rights, controversy is inevitable. ROK is a divided nation, and potential war with North Korea makes a strong military necessary. Also, the public atmosphere creates different conditions for military service and alternative service. In this light, volunteer military system certainly has advantages over alternative service. Therefore, it seems necessary to discuss the possibility of volunteer military service now, when the door to active discussion concerning the military has been opened.
By Kim Ki-june(Int’l & Social Reporter)