Supreme Court Reverses Acquittal of Conscientious Draft Resister

The general panel at the Supreme Court reversed the higher court’s acquittal of a conscientious draft resister, 23 years old and known by his surname Choi, on July 15 and upheld a local court’s sentence of 18 months against him.

The ruling has put an end to the conscientious draft resistance case, in which mixed rulings caused social controversy.

Also, similar cases that are still pending at lower courts will likely receive the same ruling, reflecting the Supreme Court’s decision if there are no extenuating circumstances for them.

In its ruling, the court said, “The exercise of constitutional basic rights should be allowed as far as it can co-exist with others’ lives in the national community and as it does not jeopardize other constitutional values and the law and order.”

“The defendant’s resistance to the military draft is seen as part of freedom of conscience, which is relative freedom that can be limited by other constitutional values.”

“It is the legislature’s extensive inherent authority to uphold criminal legislation or introduce a non-military service alternative,” said the panel. “The lack of a non-military service alternative and criminal charges against draft resisters are neither in breach of constitutional principles of a ban on excessive prohibitions and fairness nor religious discrimination.”

The ruling was jointly written by 12 Supreme Court judges, except for Judge Lee Gyu-hong, who is on a business trip, and an assistant director for the court.

Meanwhile, Judge Lee Kang-guk submitted a minority opinion in which he said, “When freedom of conscience and the duty of national defense run into conflict, freedom of conscience, the basic constitutional right, should be even more guaranteed.” Among the 11 judges who formed a majority, Judge Yoo Ji-dam and three others joined forces with Judge Lee in forging a supplementary opinion requesting the introduction of a non-military service alternative.

Kim Soo-Jeong, Defendant Choi’s lawyer, said, “I will be waiting for the Constitutional Court ruling.” He added, “If the Constitution finds the current military draft law to be constitutional, I will bring the case to the U.N. Human Rights Commission.”

Choi was arrested after his no-show at a military training base in Nonsan after the November 2001 draft notification.

jin0619@donga.com