Conscientious Objection and Alternative Service (2018)

Introduction

The Constitutional Court’s 2018 conscientious objection decision (2011Hun-Ba379) marked a transformative moment in South Korean constitutional law. The Court, reversing its 2004 precedent, held that the Military Service Act (병역법) violated freedom of conscience (Article 19 of the Constitution) by failing to provide alternative civilian service for conscientious objectors. The decision required legislative action by December 31, 2019, leading to the 2020 amendment establishing a 36-month alternative service program.

Background

South Korea maintains compulsory military service for all able-bodied men. Before 2018, conscientious objectors — primarily Jehovah’s Witnesses, who constituted approximately 90% of objectors — faced criminal prosecution under Article 88 of the Military Service Act, which punished refusal to perform military service with up to three years’ imprisonment. Between 1950 and 2018, over 19,000 conscientious objectors were imprisoned.

Earlier Jurisprudence

In 2004 (2002Hun-Ba1), the Constitutional Court had upheld Article 88, holding that military service was a fundamental national duty and that national security concerns justified the absence of alternative service. That decision reflected the Court’s traditional deference to legislative judgments on national defense.

Constitutional Court Decision (2011Hun-Ba379)

On June 28, 2018, the Constitutional Court held by a vote of 6–3 that the Military Service Act’s failure to provide alternative service violated Article 19 (freedom of conscience).

Majority Opinion

The Court’s reasoning included:

Freedom of Conscience (Article 19)

The Court recognized conscientious objection as a manifestation of deeply held religious or moral beliefs, protected as an aspect of freedom of conscience. The Court distinguished between genuine conscientious objection and mere convenience or political protest.

Proportionality Analysis

Applying the four-stage proportionality test, the Court found:

• Legitimate aim: National defense and military preparedness
• Suitability: Conscription serves national defense
• Necessity: Alternative service would not undermine national security, as many countries provide it without compromising military readiness
• Balancing: The severe burden on objectors (criminal conviction and imprisonment) outweighed the marginal benefit of denying alternative service

Legislative Obligation

The Court invoked the principle of protection of trust and legal certainty but declined to suspend the unconstitutional effect immediately, instead ordering the National Assembly to enact alternative service legislation by December 31, 2019.

Dissenting Opinions

Three justices dissented, arguing that military service requirements fell within legislative discretion and that the Court should defer to the National Assembly on matters of national defense.

Legislative Implementation

The Military Service Act Amendment (Act No. 17435, 2020) introduced:

• 36-month alternative service at correctional facilities, police stations, or fire stations
• Conscientious Objection Review Committee: Evaluates applicants’ sincerity of belief
• Prohibition on re-application: Those who begin regular military service may not later claim conscientious objection

The 36-month duration (twice the standard 18-month army service) has been criticized as punitive. The Supreme Court has reviewed individual cases challenging the length.

Supreme Court Decisions

Concurrently, the Supreme Court of Korea issued landmark acquittals for conscientious objectors (2018Do17403, June 2018), holding that criminal punishment was inconsistent with the Constitutional Court’s decision.

Significance

The 2018 conscientious objection decision represents:

• A reversal of the Constitutional Court’s 2004 precedent, demonstrating constitutional evolution
• Recognition of freedom of conscience as a meaningful constraint on state power
• Alignment of South Korean law with international human rights standards (UN Human Rights Committee views on Korean conscientious objectors)

Conclusion

The 2018 conscientious objection case transformed South Korean military law. By requiring alternative civilian service, the Constitutional Court brought Korean law into conformity with international human rights norms while maintaining the country’s defense capabilities through a balanced alternative service framework.