"The Military Service Basic Act Prohibiting Collective Complaints and Signature Actions on Military Duties by Officers Is Constitutional"

The Constitutional Court has made its first ruling that the provision in the "Framework Act on the Status and Service of Military Personnel (Military Service Framework Act)" prohibiting officers from collectively filing complaints or signing petitions related to military affairs does not violate the Constitution.

On the 25th of last month, the Constitutional Court ruled constitutional by a 5 (constitutional) to 4 (unconstitutional) vote in the constitutional complaint case (2021HunMa1258) filed by Mr. A, who claimed that Article 31, Paragraph 1, Subparagraph 5 of the Military Service Framework Act, which contains such provisions, violates the Constitution.

Mr. A, an officer currently serving on active duty who was appointed as a short-term legal officer in August 2021, filed the constitutional complaint arguing that this provision infringes on freedom of expression and freedom of association.

[Image source=Beomryul Newspaper]

The Constitutional Court judged, "The provision under review aims to establish order and the command system within the military organization to maintain and strengthen the military's combat power, thereby achieving national security and territorial defense, and thus its legitimacy of purpose and appropriateness of means are recognized."

It added, "Acts of collectively filing complaints or signing petitions related to military affairs can disrupt military discipline, potentially inciting unpredictable division and conflict. If perceived as representing the interests of the officer group, it may undermine trust in the fairness and objectivity of military affairs, and the entire military could be suspected of political bias. Considering that the Military Service Framework Act already provides other means to raise issues related to complaints about military affairs, the provision under review does not violate the principle of proportionality and does not infringe on officers' freedom of expression."

On the other hand, Constitutional Court Justices Kim Ki-young, Moon Hyung-bae, Lee Mi-seon, and Jeong Jeong-mi dissented.

These justices stated, "The necessity of regulating acts of collectively filing complaints or signing petitions related to military affairs should be judged concretely on a case-by-case basis according to the risk involved. Since such acts may include those with public interest purposes, it cannot be conclusively said that they uniformly undermine trust in the fairness and objectivity of military affairs."

They also said, "Whether such acts violate political neutrality requires investigation into whether the collective complaints or petitions related to military affairs constitute reasonable and sound criticism or are means to support a particular political faction. If such acts amount to political activities, they can be prohibited and punished under Article 65 of the State Public Officials Act. The alternative methods provided by the Military Service Framework Act cannot guarantee the same level of effectiveness as collective complaints or petitions related to military affairs, so the provision under review infringes on officers' freedom of expression."

Park Su-yeon, Legal Times Reporter

※This article is based on content supplied by Law Times.

This content was produced with the assistance of AI translation services.