Scholars criticize Council ruling

Speaking in the name of freedom of conscience, scholars yesterday detailed their frustration and disagreement with the results of a recent judicial review which ruled out the possibility that so-called "conscientious objectors" could be exempted from serving in the military.

"I used to be a hopeless optimist. But the ruling by the Council of Grand Justices has turned me into a pessimist," said Nigel Li (李念祖), a constitutional scholar and also an attorney in the appeal for the judicial review on the constitutionality of the Military Service Law.

The Council of Grand Justices, Taiwan's top arbiter on constitutional interpretation, ruled on Oct. 1 that the military service law is not unconstitutional, and that no one may refuse service due to religious convictions. In a written opinion, the Council made a distinction between religious freedom on the spiritual level -- such as thoughts, speech, belief -- and religious freedom in a more concrete form, such as religious behavior or religious assembly.

Freedom on the spiritual level, it determined, is protected by the Constitution, but a compromise must be made with social responsibilities due to its possible impact on public order.

"Religious freedom [as any other basic right] is protected by the Constitution as much as regulated by it. In a minimum scope, religious behavior and religious assembly still have to be subject to regulation by state laws, and therefore it is not justifiable for anyone to defy state laws for religious reasons," read the written opinion.

The judicial review by the council is the court of final appeal in the island's justice system, and thus the decision has thrown the fortunes of Taiwan's conscientious objectors, namely Jehovah's Witnesses, into an impasse. Twenty-four Witnesses currently jailed for refusing to serve in the military for their religious beliefs will therefore be unable to put an end to what has become a vicious cycle of jail, release, recall to the armed forces and, eventually, jail again.

"Among existing democracies, Taiwan is the only country which is still using penal measures against conscientious objectors," Li said. "We've seen so many international examples and the universal trend they imply. Why does this country remain an exception [to the trend]?"

Analysing over 200 court judgements against Witnesses, Huang Chun-chieh (黃俊杰), a law professor at National Chungcheng University, pointed out that some Witnesses have deliberately appealed judgements to demand longer sentences. That is, they filed appeals hoping to receive a prison term longer than seven years, by which time they would be permanently exempt from compulsory military service.

"Justice does not exist when a citizen seeks severer punishment in exchange for freedom of conscience. But sadly, that's the way our system works," Huang said.

It has become common practice in countries where military service is compulsory to exempt conscientious objectors from combatant training and to allow them instead to serve in alternative roles, such as community service.

Witnesses hope they will qualify for the program of civilian service slated to begin next July, which will accommodate 5,000 male citizens per year.

Huang said the only solution so far for the 24 prisoners of conscience currently still in jail, however, is the possibility that the legislature might pass a new law allowing them into the civilian service program next year.