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The South Korea Constitutional Court hearing of July 9, 2015

DECEMBER 20, 2016
SOUTH KOREA

South Korea’s Constitutional Court Soon to Release Significant Decision

A historic decision is pending with South Korea’s Constitutional Court as it again weighs constitutional principles against the punishment of conscientious objectors under the Military Service Act. The anticipation for the Court’s decision has been growing since a public hearing on the issue was held in July 2015. Recently the president of the Court, Han-chul Park, confirmed that a decision would be delivered before his tenure expires on January 30, 2017.

An Outcome That Affects Thousands

South Korea’s Constitutional Court is the country’s highest court, vested with authority to determine the constitutionality of the law. The Court has been asked to reexamine the provision in the Military Service Act that punishes with imprisonment persons who refuse to take up military service for reasons of religious conscience. The Court is expected to determine whether this punishment conflicts with South Korea’s Constitution and its guarantees of freedom of conscience and religion.

If the Court decides that the government’s decades-long practice of imprisoning conscientious objectors is unconstitutional, South Korea will be forced to reexamine its treatment of conscientious objectors. Such a positive result will likely lead the government to stop prosecuting, convicting, and imprisoning young men who follow their conscience by refusing to perform military service.

Confusion in the Judicial Process

The Constitutional Court previously considered this issue in 2004 and 2011. Both times, it ruled that the laws penalizing conscientious objectors are constitutional. Similarly, the Supreme Court, South Korea’s chief appellate court and court of last instance, ruled in 2004 and again in 2007 that conscientious objection to military service is not a justifiable ground for refusing military call-up. Despite these high court rulings, enforcement of the law continues to be an unresolved issue—even in the courts.

South Korean courts at every level have expressed discomfort in sentencing conscientious objectors to prison. Since the Constitutional Court’s 2011 decision on the issue, the Court itself has agreed to hear 7 cases referred by district courts and 22 additional cases submitted by individuals. The Supreme Court rulings have also been challenged, and more than 40 cases on the issue of conscientious objection are pending with this high court. Since May 2015, trial courts have issued nine not-guilty decisions on behalf of conscientious objectors.

In October 2016, an appellate court took note of the struggle both in the lower courts and in those above them, stating: “This kind of confusion in interpreting and applying a single legal provision is unprecedented.” In the first ruling of its kind, the same appellate court declared three conscientious objectors not guilty. That not-guilty decision was welcomed by the Seoul Bar Association, which considered it “monumental.” The president of the Seoul Bar Association, Han-kyu Kim, noted that the Constitutional Court now has the final say.

“This kind of confusion in interpreting and applying a single legal provision is unprecedented.”—Gwangju District Court, Third Criminal Division, judgment regarding Lak-hoon Cho, dated October 18, 2016

A Long-Standing Issue at the Brink of Resolution

Mr. Kim further stated: “The public eagerly waits for [the Constitutional Court’s] positive decision on this issue. Conscientious objectors still endure criminal punishment even without a chance to consider alternative service. The Constitutional Court, the last stronghold for human rights, is urged to render its decision as soon as possible.”

Over the past 60 years, almost every South Korean family of Jehovah’s Witnesses has been touched by this issue, having fathers, sons, and brothers sentenced to prison for refusing to serve in the military. A decision in favor of conscientious objectors will eliminate the unproductive imprisonment and harmful criminalization of many young men and will strengthen the right to freedom of conscience and religion for all citizens.

All attention is now focused on the Constitutional Court’s forthcoming historic ruling.

 

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