hankyoreh

Members of Amnesty International hold a press conference on May 15

The question of conscientious objection – that is, refusing to enroll in the military or bear arms because of religious beliefs – will be reviewed by the full bench of South Korea’s Supreme Court for the first time in 14 years. Public arguments on the matter will also be held at the end of August. This appears to reflect a growing push for the creation of an alternative to mandatory military service, with an increasing number of district courts acquitting conscientious objectors. Amid progress in peace talks on the Korean Peninsula, attention is turning to whether there will be a change in judicial rulings that have stressed the national security situation.

Hankyoreh reporters learned on June 17 that the first panel of the Supreme Court (under Hon. Park Sang-ok), which is hearing a case in which an individual surnamed Nam is accused of violating the Reserve Forces Act, and the third panel of the Supreme Court (under Hon. Kim Jae-hyung), which is hearing a case in which an individual surnamed Oh is accused of violating the Military Service Act, have decided to refer these two cases to the entire complement of Supreme Court justices. The court has also made plans to hold public arguments on Aug. 30.

This will be the first time that the Supreme Court has held public arguments in a case involving conscientious objection. Toward this end, the Supreme Court held a preparatory meeting for the trial arguments on June 12 with the attorneys for the defendants and officials with the department of hearings and litigation at the Supreme Prosecutors' Office. The Supreme Court is also reportedly planning to listen to opinions from the Defense Ministry, Military Manpower Administration, Korean Veterans Association and the National Human Rights Commission of Korea (NHRCK) about conscientious objection and an alternative service program.

This is not the first time that conscientious objection has been the subject of a public debate. But time and again, it has been unable to clear the threshold of institutions that could actually deal with the issue, such as the Supreme Court, the Constitutional Court and the National Assembly.

In July 2004, the entire bench of the Supreme Court definitively ruled that “the freedom of conscience does not take priority over the duty to defend the nation,” and it has maintained that position ever since, most recently in a ruling in July 2017. There are reportedly 210 related cases (concerning violations of the Military Service Act and the Reserve Forces Act) currently pending at the Supreme Court. But during that time, the number of conscientious objectors who have been acquitted by district courts has boomed: 1 in 2007, 6 in 2015, 7 in 2016, 44 in 2017 and 28 as of June 2018. NHRCK surveys of public attitudes toward human rights show that the percentage of respondents who think that conscientious objection should be allowed nearly quadrupled between 2005 (10.2 percent) and 2016 (46.1 percent). In its decision to discuss the case before the full bench, the Supreme Court appears to have been taking into account the public’s shifting view toward conscientious objection and demands for the adoption of an alternative form of service.

Now that the Supreme Court is taking a forward-looking attitude, the Constitutional Court is also expected to move forward more quickly. On two previous occasions, in 2010 and 2015, the Constitutional Court has heard public arguments and reviewed the constitutionality of Article 88 of the Military Service Act, which prescribes a sentence of up to three years in prison for those who disobey a summons to report for military service without a legitimate reason. But in 2011, just as it had done in 2004, the Constitutional Court upheld the constitutionality of Article 88 of the Military Service Act by a ratio of 7 to 2.

“In light of the unique security situation resulting from the inter-Korean conflict and the loss of military manpower that would result from the introduction of an alternative form of service, it is not easy to reach a decision,” the court explained. Though the court has repeatedly received petitions to review the constitutionality of the law since then, it has not ruled on the matter for seven years in a row. Some members of the legal establishment expect that the Supreme Court’s decision will affect the speed of the Constitutional Court’s review. They believe that this could become a battle over pride of place as the nation’s highest court.

Discussion continues in the National Assembly about ways to find a legislative solution. In the current session of the National Assembly, Jeon Hae-cheol, Park Ju-min and Lee Cheol-hui, all lawmakers with the Democratic Party, have submitted revisions to the Military Service Act that are focused on adopting an alternative form of service.

The primary debate in this case is whether the freedom of conscience should be regarded as a legitimate reason for refusing to show up for military duty or participate in training, as mandated by the Military Service Act and the Reserve Forces Act. Whereas six out of nine justices must be in agreement for the Constitutional Court to make a decision, decisions by the full bench of the Supreme Court are reached by a majority vote, which requires the support of 7 of the 13 justices.

The Supreme Court’s announcement that the public arguments will be held at the end of August is also notable. Among the current Supreme Court justices, Ko Young-han, Kim Shin and Kim Chang-suk will be completing their terms on Aug. 2.

There has been a steady push for the appointment of justices with diverse backgrounds and experiences who will make decisions that take consideration of members of minorities and other vulnerable segments of society. In their confirmation hearings, recently appointed justices have emphasized the change in attitude in the judiciary. Justice Cho Jae-youn said that “the court needs to take a more forward-looking approach to interpreting the question of whether [freedom of conscience] is a legitimate reason [for refusing to serve in the military],” and Justice Park Jung-hwa said that “This debate should be wrapped up by the full bench of the Supreme Court, which is this country’s highest court.”

By Hyun So-eun, staff reporters

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