[Opinion] Tolerance on Conscientious Objectors

“If there is a fixed star in our constitutional constellation, it is that no official, high or pretty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” This description of Justice Robert Jackson at the case, West Virginia State Board of Education v. Barnette (1943) reveals clearly the respect for the individuals and the principle for the freedom of thought. The Barnette sisters who were the believers of the Jehova`s witness refused to salute to the national flag for they though it was a worship of an idol, and because of that, they were expelled from school. The Supreme Court judged it unconstitutional. The judgment reversed a decision handed down for a similar case only three years earlier.

The day that the decision was made, June 14th, was the day that the national flag was established. Justice Jackson considered the issue not as a matter of `religious freedom` but as a matter of `freedom of thought` and emphasized that the constitutional principle is the principle far beyond the political debates or decision of majority.

Korea has a similar case as well. However, the Korean Justices judged that the expulsion of a student who refused to salute to the national flag as constitutional. `The freedom of religion` is protected only in the boundary of regulations and orders of the schools that students are registering.

Such opinion of the Korean court has been very consistent. The Korean Supreme Court described at a similar case that believers of a religious denomination objected their military service in 1966, ¡°the conscientious decision of Christians to object the military service must be punished by the military law,……… `the conscientious decision` mentioned above does not belong to the freedom of conscience protected by the constitution.¡°

At the end of January, an exceptional decision was made by a court. The court questioned the Constitutional Court of Korea the constitutionality of the decision that there is no exception in the military service law for `the conscientious, religious objectors` in the punishment of slackers.

The decision of Seoul South Precinct describes,

¡°In case of so-called `conscientious, religious objectors,` there are conflicts between the constitutional basic `duty of military service` and the core basic human rights in the democracy and liberalism, that are, `freedom of thought and conscience` and `freedom of religion.` Hence, the duty and the rights should be harmonized without damaging the substances of the two. If the punishment regulation for the slackers is indiscriminately applied to the conscientious, religious objectors, it will seriously violate `the freedom of thought and conscience` and `freedom of religion` for the perfect enforcement of `the military service duty.`

The issue of conscientious and religious objectors is not the problem of the Korean society only. The U.S. has the longest tradition of the military service exemption.

The basic position of the U.S. Supreme Court does not acknowledge the rejection of the military service due to conscience as the constitutional right but as a judiciary grace. Currently, many advanced countries acknowledge the conscientious objections and Taiwan recently legislated it.

The UN Human Rights Commission recommends the legislation of the conscientious objection. Generally, alternative service is imposed instead of military service. The decision of the South Seoul Precinct seems to imply the appropriateness of alternative services. Considering the cold war situation in Korea still now, the military service is a very sensitive issue. Nevertheless, this issue must be viewed with a fresh eye.

About 600 conscientious objectors are sentenced 3 years in prison every year in Korea. Their problem may be seen as a problem of a `heretic minority.` However, the issue of conscientious, religious objectors is not a problem of a certain religious sect. This issue is a symbol that shows the attitude of Korean society toward minorities.

The American individualism may not be ideal. However, the collectivism of our society that won`t acknowledge `a difference` is too strict. Now it`s time for our society to learn a more tolerant attitude.

Yang Ghun (Dean of Hanyang University Law School, Constitution)