Seoul court allows Jehovah's Witnesses to skip military duty

May 22, 2004
By Joo Sang-min

A local court yesterday acquitted three conscientious objectors who refused to serve their compulsory military service, further tipping a debate over whether conscientious objection is justified or not.

In its ruling, the Seoul Southern District Court dismissed the prosecution's demand to imprison a 22-year-old South Korean man only identified as his last name Oh on charges of violating military service law. Oh refused to serve the two-year compulsory military duties.

The court also dismissed the cases against two other objectors, identified by their family names Jeong, 23, and Hwang, 32. The prosecution expressed its desire to appeal to a higher court.

It marked the first court recognition of the right to object to serving in the military in terms of their conscience, and a large number of related cases are pending.

Critics expressed their concerns as what they said the ruling, if confirmed in the Supreme Court, would turn up a series of objectors and disrupt national security as the nation is still technically at war with communist North Korea.

The three objectors are all followers of Jehovah's Witnesses, a religion that scrupulously opposes military service.

Amnesty International says most of the conscientious objectors in South Korea are Jehovah's Witnesses. As of December 2003, over 1,000 conscientious objectors were in prison for their refusal to serve in the military.

The unprecedented court decision broke the past rulings that the freedom of conscience could be restricted when it contradicts the national security.

The ruling came as the court actively interpreted the Constitution and international covenants that guarantees the freedom of conscience.

Previously, courts have ruled it was not a violation of the Constitution to require conscientious objectors to fulfill their military duty.

"The intention of the Constitution is a clear manifestation of not intervening in the inner freedom of individual conscience," said presiding judge Lee Chung-yeol in the ruling.

"Also, the human rights commission of the U.N. Economic and Social Council, to which South Korea has been appointed a member for five consecutive terms since 1993, has stressed that the right to refuse military service must be recognized," Lee added.

Article 19 under the Constitution says all citizens shall enjoy freedom of conscience. International Covenant on Civil and Political Rights, which the country ratified in 1990, says everyone shall have the right to freedom of thought, conscience and religion.

South Korea's political issue of technically confronting North Korea also didn't play a big role in the court ruling.

"The ruling marked an epoch-making decision and is welcomed as it reinforces a shift to the importance of human rights of individuals," Kim Seung-kyo, a lawyer and member of Minbyun, or Lawyers for a Democratic Society, told The Korea Herald.

Kim said the ruling probably reflected the peaceful prospects ripening between the two Koreas.

The ruling is surely good news to those who have been on the same shoes like the acquitted yesterday.

"It doesn't feel real. I thought I would have to go to jail," says 23-year-old Jehovah's Witness, who only wanted to be identified his family name Suh.

"Although we still have to wait for the Supreme Court's decision, I'm happy to see that things can change," Suh added.

But critics said the court ruling would be overturned in upper courts and contradicts the Constitution which also says all citizens shall have the duty of national defense under the conditions as prescribed by law.

"Until the Constitutional Court's final ruling, the objectors could not be recognized, as the ruling will bring a series of similar cases and could disrupt the national security," said Chang Kwang-soon, an official with the Military Manpower Administration told The Korea Herald.

Lee Seung-hwan, a lawyer and board member of Advocates for the Constitution, said he expected the Supreme Court would eventually lower court's decision given that there is no alternative form of civil service.

"Is it reasonable for subjective motives, such as conscience refusal to serve military duties, to be allowed under the Constitution?" Lee said in a telephone interview. "In that case who would like to volunteer to serve the military?"

The Constitutional Court is reviewing the cases to ascertain whether the charges against conscientious objectors violate basic human rights guaranteed under the Constitution. Also, the military conscription law banning conscientious objection is currently under review by the Constitutional Court.

But the controversy is expected to linger on for the time being, as other details, such as requiring an alternative service, are not firmly defined.

Reflecting such problem, the court yesterday ruled against another 23-year-old man, identified by his family name Cho, by saying, "his cause is not enough," and sentenced him to the maximum prison sentence of three years.