Ui jin Jeong
Prof. Kyle Brebner
IERW (04)
29 November 2015
Unconstitutionality of
Rejecting Conscientious Objection
In 2004, the Constitutional Court of Korea reached a
verdict that allowing conscientious objection was wrong for the current
military service law. Why did they make such a judgement? The main reason is
that Korea has been facing with special confrontational situation against North
Korea so that the court judged conscientious objection, rejecting to enlist due
to religious belief, could hinder national defense and social unification. For
example, once rejecting to serve military duty is permitted, most of the people
do not want to enlist for the country, which is seriously connected to the
safety of the country. However, the reason why a nation could ultimately exist resides
in citizens. In other words, the citizens always come before the nation. Therefore,
the citizens should not be obligated military service since every people have a
freedom of conscience and obligatory military service is replaceable with substitute
military service.
The public has a right to keep and realize their own
conscience depending on their religion or faith. This liberty of conscience is
specified in nineteenth article of Constitution as a basic human right. Conscientious
objection is included in this kind of freedom as well because the people who
insisted conscientious objection are trying to maintain appropriateness of
action based on their own ethical values. Though the Constitutional Court judged
that national interests like special situation of the nation and social
unification had priority over an individual’s freedom of conscience, as a basic
human right about human dignity and value, the liberty of conscience should
have priority. Thus, not accepting conscientious objection is against for the root
idea of Constitutional law. Furthermore, in 1997, the United Nations Commission
on Human Rights resolved that conscientious objectors should not be
discriminated for any reason. This is because the right to be a conscientious
objector is directly related to one’s liberty of religion and conscience which
are very important to live like a human being.
Another
reason the public should not be obligated military service by the nation is that
they can serve a substitute military service system that enables conscientious objectors
to serve other kinds of duties for national defense. It is a compromise resulting
from principle harmonizing two contrasting values, national interests and the
liberty of conscience. According to a dissertation from a website Riss, named a Study on the Conscientious Objection and Alternative Service,
about half of the 80 nations that adopt selective service in the world have
enforced various kinds of alternative military service system for conscientious
objectors. Germany, one of these countries, has allowed a substitute system
since it was West Germany in the 20th century. It has a lot of
options for conscientious objectors in the fields of service about civil case
and environment like serving for rehabilitation facility, nursing assistants,
management of public buildings and so on. As a result, this contributes to help
expand social welfare. In fact, Korea has already enforced substitute military
service system since the 1970s as well, but whether a man can serve the substitute
service has been decided not by one’s free will but by the decision of physical
examination for conscription. To keep an individual’s conscience and help
reduce the proportion of desertion, the government should give diverse options to
helpful substitute military services for national defense and interests, and let
the conscientious objectors choose one of the options voluntarily.
On the contrary, some people might think that evasion of
military service would be prevalent if the Constitutional Court entirely admitted
to conscience objection. However, this problem can be prevented by legitimate
and fair judgement of the judges. They can judge people’s qualifications for
conscientious objection through reasonable evidence such as a certificate that
shows how much a conscientious objector devout his religions, and their
statements. In addition, if the difficulty of substitute military service is
just as hard as original military service, it can help to prevent the evasion
of military service. Finally, the evasion of military service is a problem
which can be resolved not by just prohibiting conscientious objection but by
making an increase to social ethical values. Thus, permission to conscientious
objection would not cause evasion of military service to be prevalent.
Given that the nation’s
reason for being is ultimately vested in the members of the nation, all of citizens
have prior rights to exert the liberty of conscience which is a fundamental
human right. Of course, people who reject to serve military service deserve to have
the rights to choose and serve substitute military service system according to
the principle of harmony. Therefore, the nation should not force to serve only
military service for the duty of national defense and should offer diverse
options about alternative military service in a way of achieving national
interests or welfare, and guaranteeing the freedom of conscience and choice. In
conclusion, the current law does not accept conscientious objectors and gives
them punishment, but when a day of allowing them comes someday, this will be an
indicator which presents that the level of consciousness of our nation has a
lot improved than before.
Hello uijin! really Glad to see u in this semester ! :-) i hope you have lovely vacation:)
답글삭제I definitely agree with your opinion. The government should not to force people to serve for the army. they have their freedom! However, we need soldiers to protect our country and Most of the korean soldiers have had negative opinions of the army.
So, i think we need an institutional change for the duty of national defense by offering soldiers incentive systems dealing with their welfare and satisfaction.