Move to Codify the "Right to Refuse Unlawful Orders"... Martial Law Requirements and Powers to Be Revised

Subcommittee on the Establishment of Constitutional Values Announces Discussion Results

In the wake of the 12·3 Martial Law, there is a move to explicitly stipulate the "right to refuse unlawful orders" in the Basic Act on Military Service. Additionally, amendments to the Martial Law Act have been recommended to restrict the requirements for martial law and the powers of the martial law headquarters, in order to prevent the recurrence of illegal martial law.

The Subcommittee on the Establishment of Constitutional Values, part of the Civil-Military Joint Special Advisory Committee for Overcoming Insurrection and Designing Future National Defense at the Ministry of National Defense (Chair: Lee Gyesoo, Professor at Konkuk University Law School), announced these discussion results on January 20. The subcommittee has discussed topics including: ▲amendments to laws related to the establishment of constitutional values within the military ▲improvements to laws and systems to prevent illegal martial law ▲methods for implementing civilian control in the military ▲strengthening education to uphold constitutional values ▲and measures to establish a fair military judicial system.

Yonhap News Agency

First, to establish constitutional values within the military, it was recommended to specify the right to refuse unlawful orders in the Basic Act on Military Service, while also providing clear criteria to help personnel determine what constitutes an unlawful order. Furthermore, it was advised to introduce an immunity provision to ensure that those who refuse unlawful orders are not punished under military criminal law, such as for insubordination.

To prevent illegal martial law, the committee considered constitutional amendments as a long-term goal, but recommended first revising the Martial Law Act. Vague requirements such as "emergencies equivalent thereto" in the current law would be replaced with clear and specific criteria, and the provision allowing the martial law commander to oversee all administrative and judicial affairs during emergency martial law would be limited to the exercise of individual and specific supervisory powers. The committee also recommended, through amendments to enforcement ordinances, making it mandatory to prepare and manage minutes of Cabinet meetings and to specify the reporting requirements to the National Assembly.

Regarding the implementation of civilian control in the military, the committee recommended establishing the concept of "control by the people" and expanding communication with civic groups, reserve organizations, and the National Assembly to reflect the will of the people in national defense work. Strengthening the military leadership of the Minister of National Defense through the operation of military advisory groups composed of civilian and military experts was also proposed. Additionally, the committee recommended enacting a so-called "Basic Act on Civil-Military Relations" to support these measures.

In terms of strengthening education to uphold constitutional values, the committee decided to restructure many military education programs based on constitutional values, thereby expanding opportunities for constitutional education. In particular, education for field-grade and general officers, as well as commanders, would be significantly reinforced.

A proposal was also made to integrate the investigative agencies of each military branch directly under the Minister of National Defense. This is intended to ensure civilian control, the right of service members to request trials, and the protection of human rights. The subcommittee noted that, since such integration could lead to concerns about the concentration of power, it is essential to thoroughly consider supplementary measures such as expanding inspection and external oversight functions and introducing a civilian advisory committee.