hankyoreh

On International Conscientious Objectors Day

As of Sept. 24, South Korean district courts had acquitted conscientious objectors in more than 50 cases – with 35 of these rulings being made this year. District court judges are growing more vocal in their demands for a change of attitude from the government, the National Assembly, the Constitutional Court and the Supreme Court, which have been slow to find a solution to the issue of conscientious objectors.

On Sept. 21, Hon. Lee Dong-gi, a judge at the Incheon District Court, acquitted a 23-year-old surnamed Kwak, who had been charged with violating the Military Service Act by failing to enlist after being ordered to report for duty. This was the 52nd not-guilty verdict since May 21, 2004, when Hon. Lee Jeong-ryeol, a judge at the Seoul Southern District Court, became the first to acquit a conscientious objector. In that case, Lee Jeong-ryeol acquitted two individuals (including one surnamed Oh) who refused to enlist for religious reasons, and three individuals (including one surnamed Hwang) who refused to attend reserve forces military training.

“The freedom of conscience is directly connected with human dignity and value, which are the supreme ideals of the Constitution. Punishing such individuals according to Article 88, Clause 1, of the Military Service Act is an unfair infringement on their constitutional rights, and it must be concluded that [Kwak] had a legitimate reason to refuse to perform his military duty,” Lee Dong-gi said. The courts have routinely sentenced conscientious objectors to one year and six months in prison, applying Article 88, Clause 1, of the Military Service Act, which mandates a prison sentence not to exceed three years for those who fail to enlist without a “legitimate reason.”

Another judge who has called for the introduction of an alternative service system is Hon. Kwon Gi-cheol, presiding judge in the eastern branch of the Busan District Court, who acquitted two conscientious objectors on Sept. 20. “If an opportunity for alternative service is provided, the state will acquire human resources that can serve in government and public interest projects, and it could improve the ideological legitimacy of our democratic government, which would aid the security situation,” Kwon said in his decision.

The 35 acquittals of conscientious objectors that have been made this year represent a major increase from previous years: after the first acquittal in 2004, there was one in 2007, six in 2015 and seven in 2016. The number of judges who have been involved in the acquittals has also increased to 22. The string of not guilty verdicts in the courts are related to fact that the government has failed to take action since it scrapped plans to create a form of alternative service that it had announced in 2007, that related legislation was not taken up by the last three sessions of the National Assembly, and that the Constitutional Court’s review of the issue is now in its sixth year, the longest review it has ever undertaken.

“Since there’s no possibility of change at the Constitutional Court, there’s a growing consensus among judges that conscientious objection qualifies as a ‘legitimate reason’ mentioned in the Military Service Act,” said one judge who has returned a not guilty verdict.

In his decision to acquit a conscientious objector on Aug. 13, 2015, Hon. Hwang Jae-ho, a judge at the Seoul District Court, emphasized the court’s role. “The National Assembly is governed by the principle of majority rule, and there is also a legal precedent of the Constitutional Court upholding the constitutionality of this law,” Hwang wrote. “The courts can easily resolve this issue through their interpretation of ‘legitimate reason,’ and protecting minorities is the mission and the duty given to the courts.”

Given the string of acquittals, attention is focusing on whether an alternative service system will be introduced. Such a system was one of President Moon Jae-in’s campaign pledges, and it was also recommended once again by the National Human Rights Commission this past July. Minjoo Party of Korea lawmakers Jeon Hae-cheol, Lee Cheol-hui and Park Ju-min submitted a bill in the current session of the National Assembly that would create an alternative service system, and the Ministry of Defense announced in a meeting of the National Assembly’s National Defense Committee on Sept. 19 that it is “using public opinion polls to review the idea of setting up comprehensive measures.”

The Supreme Court is currently reviewing three cases in which the defendants were acquitted on appeal, and it remains to be seen what attitude will be taken by the newly appointed Chief Justice Kim Meong-su, who said that “the right to conscientious objection needs to be acknowledged, but it should be dealt with through legislation.”

“The National Assembly, the government, the Supreme Court and the Constitutional Court need to move quickly in their respective positions to resolve this collective human rights issue that is sending hundreds of people to prison every year,” said Oh Du-jin, a lawyer who defends conscientious objectors.

By Kim Min-kyung, staff reporter

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