Constitutional Court, judgment No. 681/95, 05.12.1995

CONSTITUTIONAL REVIEW | CONSCIENTIOUS OBJECTION | MILITARY SERVICE | CIVIC SERVICE | JEHOVAH’S WITNESSES

 

Constitutional Court, judgment No. 681/95, 05.12.1995

 

JURISDICTION: Constitutional

SUBJECT: Constitutional review; conscientious objection

RAPPORTEUR: Monteiro Dinis

RULING: Non unconstitutionality of the provision in Article 18(3)(d) of Law No. 7/92, of 12 May 1992, which requires an express statement by the conscientious objector to the military service of his availability to render alternative civic service.

DOMESTIC LAW:

1976 Constitution (Articles 18, 41 and 276)

Law No. 7/92, of 12 May 1992 (Conscientious Objection Act)

Law No. 6/85, of 4 May 1985, amended by Law No. 101/88, of 25 August 1988 (Conscientious Objector to the Mandatory Military Service Act)

Law No. 30/87, of 7 July 1987, amended by Law No. 89/88, of 1 August 1988 (Military Service Act)

Decree-Law No. 463/88, of 15 December 1988 (Military Service Regulation)

1933 Constitution [Article 8(3)]

1911 Constitution (Article 3)

1838 Constitution (Article 11)

1826 Constitutional Charter (Article 145.º §)

Constitutional Court judgments Nos. 99/88, 74/84, 201/86, 413/89, 451/89, 370/91, 474/89, 65/91

INTERNATIONAL LAW:

Universal Declaration of Human Rights (Article 18)

European Convention on Human Rights (Article 9)

European Commission on Human Rights’ ruling of 11 October 1984, application No. 10410/83

FOREIGN LAW:

German Constitution (Article 4)

Austrian Constitution (Article 9)

German Weimar Constitution (Article 135)

German 1849 Constitution (§ 144)

Austrian Constitution

Swiss 1874 Constitution (Article 49)

Constitution of the State of Pennsylvania of 1776 (Article 8)

Constitution of the State of Vermont of 1777 (Article 9)

Constitution of the State of Delaware of 1776 (Section 10)

Constitution of the State of New Hampshire of 1784 (Article 13)

German Civic Service Act (§ 15)

KEYWORDS: Conscientious objection; freedom of conscience, religion and worship; Jehovah Witness; civic service; military service; principle of equality; National Commission for Conscientious Objection; defence of the Homeland; non-armed military service; humanistic or philosophical reasons; ethic or moral value standards; reasons of conscience; person’s intimacy; personal convictions; citizens’ rights and obligations; duties vis-à-vis the community; unacceptable situation of privilege; conscience dictates; individual autonomy; fundamental duty of solidarity; full objector; factors of identification and self-understanding for the human being; internal adherence to collective values; socially required behaviour; value of tolerance; human dignity; free development of personality; being-with-others; conscientious objector status; mental reservation; Catholic Church; State secularisation; Council of Vatican II; religious confession; religious imperative; Biblical prohibition to kill; God; moral integrity; minorities; general duty to obey the law; fundamentalist; law revealed by God; protestant confessions; Mennonites; Quakers; pre-Constantinian Christianity; right to tolerance; pacifist religious confessions; conscience imperative; moral coherence; ethical individualism; negative freedom; seriousness of convictions

COMMENTS:

1. This judgment of the Constitutional Court addresses an issue of much interest in terms of the principles and dogmatic framework involved, and also of particular practical importance, since it concerns the conscientious objection to compulsory military service. Despite being an issue that no longer has the same magnitude in Portugal, as there is no longer an obligation to render military service, the discussion on the issue of conscientious objection remains extremely relevant, namely in what concerns several other domains (medical treatments, etc.). In truth, issues related to freedom of religion, freedom of conscience and freedom of worship, although they are apparently consolidated by the more than 40 years of the Portuguese Constitution, still continue to raise a lively debate and, sometimes, extreme and not too conciliatory positions, even seeking legal and criminal intervention. In addition to the discussion that may arise at this level, namely in what concerns culturally motivated crimes and causes of exclusion of unlawfulness or criminal responsibility, reflections on behaviours and policies regarding inclusion/exclusion and discriminatory practices are no less important.

 

2. In this specific case, although the conscientious objection concerns a Jehovah Witness, the circumstance is not expressly referred to nor considered by the Court, which neither individually identifies the reason for conscientious objection nor discusses its validity, thus accepting it intrinsically. The terms under which the judgment was adopted (seven votes in favour to six votes against), were of particular relevance, with the position in favour of the non-unconstitutionality of the provision under review winning by only a slight margin and with several dissenting opinions.

 

3. These proceedings are based on a decision taken by the National Commission for Conscientious Objection, on 28 September 1994, that summarily rejected the statement of conscientious objection, on the grounds that it did not contain the express statement of the declarant’s availability to perform alternative civic service [as imposed by Article 18(3)(d) of Law no. 7/92 (Conscientious Objection Act)]. This decision was challenged by the applicant, who appealed to the Administrative Court of Coimbra, alleging the unconstitutionality of the provision for breach of Articles 41(6) and 276(4)(5) of the Constitution. The Court dismissed the appeal, rejecting the applicant’s unconstitutionality claim, and the decision was subsequently confirmed by the Supreme Administrative Court. Essentially, the argument was as follows: the obligation of the conscientious objector to perform civic service with the same duration and degree of arduousness as those of armed military service is directly imposed by Article 276(4) of the Constitution, which corresponds to the bilateral nature of the provision regarding the right to conscientious objection as guaranteed by Article 41(6). To that extent, this is an obligation or a limitation of a right that is grounded on the Basic Law itself and, as such, it is not even possible to raise the problem of unconstitutionality. Unsatisfied with these decisions, the applicant appealed to the Constitutional Court, considering, in sum, that the restriction under Article 18(3)(d) of Law no. 7/92, of 12 May 1992, is contrary to Articles 18(2), 41(6) and 276(4) of the Constitution (the judgment does not include the transcription or express reference to the applicant’s arguments).

 

4. In fact, while Article 41(1) of the Constitution prescribes that “the freedom of conscience, religion and worship is inviolable”, its paragraph 2 clarifies that “no one may be persecuted, deprived of rights or exempted from civic obligations or duties because of his convictions or religious observance”. Accordingly, as the Constitution expressly guarantees the right to conscientious objection [Article 41(6)], this right is guaranteed “under terms prescribed by law”. In what concerns military service, Article 276 sets out that the defence of the nation is a fundamental right and duty of every Portuguese (paragraph 1), establishing a specific rule concerning conscientious objectors: “conscientious objectors to the military service to which they are subject by law shall perform civic service with the same duration and degree of arduousness as those of armed military service” (paragraph 4). This conscientious objection was later regulated, firstly by Law no. 6/85, of 4 May 1985, amended by Law no. 101/88, of 25 August 1988 (Conscientious Objector to the Mandatory Military Service Act), and then by Law no. 7/92, of 12 May 1992 (Conscientious Objection Act). For the purpose of this case, the law establishes that the procedure to acquire the conscientious objector status has administrative nature and starts with the submission by the interested person of a statement of conscientious objection (Article 18) that must be accompanied by information and documents, among which is the “express statement of the declarant’s availability to perform alternative civic service” [Article 18(3)(d)].

 

5. The Constitutional Court considered, in a very concise manner and based on previous decisions (such as its judgment no. 65/91), that conscientious objection is a right that is a corollary of the freedom of conscience, being the “right that each individual person has to act according to the judgment of their own conscience, being thus immune to any coercion from the State or society – an immunity that relies on the fact that the judgment of conscience falls within the scope of each person’s intimacy”. Considering that conscientious objection covers several domains and that the ordinary legislator is responsible for defining its specific scope and regulating its exercise, within the limits set out by Article 18 of the Constitution, the Court recalled that, in the case of military service, the Constitution directly defines a legal framework that balances the right to conscientious objection and the duty to perform military service as an obligation inherent to the defence of the nation. Therefore, taking into account the principle of equality of duties vis-à-vis the community, the Court considered that the general recognition of the right of conscientious objection, understood as a result of the freedom of conscience, required that, instead of the military service, the duties vis-à-vis the community could be fulfilled and performed in a way that might replace this service for conscientious objectors, without colliding with that freedom. In fact, as the defence of the nation is a fundamental (right and) duty of every Portuguese, military service (compulsory at that time) is not the only way to comply with such duty, as set out in Article 276 of the Constitution. Therefore, the compulsory performance of civic service by the conscientious objectors does not correspond to a modality of compliance with military service, but to an alternative way to comply with the duties vis-à-vis the community. Therefore, this rule was not considered unconstitutional by the Court, assuming that the duty to perform civic service results from the Constitution itself, whether the objector previously accepts it or not, and considering that the statement requested by this rule is an obligation that subjects the exercise of the right to a condition, even though this is already (implicitly) embedded in the constitutional text.

 

6. Therefore, it should be noted that the decision of the Constitutional Court made no mention at all to the reason for conscientious objection, without questioning it, nor of Jehovah’s Witnesses worship. All of the Court’s arguments are based on the freedom of conscience, which can be understood as belonging to the set of fundamental rights, freedoms and guarantees, and on the need of balancing it with other fundamental constitutional values, such as the right and duty to defend the nation. It is interesting to see that the Court recognised also another argument that is relevant on this matter [the fact that the criminal liability caused by the non-compliance with the civic service is more serious than the one caused by the failure to comply with the duty of military admission, pursuant to Article 33 of Law no. 7/92, and Articles 24(3) and 40(1)(a) of Law no. 30/87, of 7 July 1987, as amended by Law no. 89/88, of 5 August 1988], but which it did not analyse as these provisions were not the subject matter of the request – even though it seemed to consider that it would not be a reason for unconstitutionality.

 

7. However, as mentioned, the dissent opinions were of particular relevance in this judgment, since the issue was widely discussed there (maybe in more detail than in the decision itself). In the first dissent opinion, Justice Maria Fernanda Palma considers that the limitation imposed is unconstitutional for breach of Article 18(1)(2) of the Constitution, as far as compliance with the civic duty is a consequence and not a condition for the exercise of the right to conscientious objection to military service. As such, the law cannot impose a limitation the Constitution does not provide for (ordinary law cannot make the conscientious objection to military service dependent on a non-conscientious objection to civic service). What is relevant here is the Justice’s reflections regarding the freedom of conscience as a basis and a boundary of the democratic rule of law, which she sees as composed of different dimensions: on the one hand, the rule of law is imposed “through the free adherence of conscience and reason, not through the mere enforcement of its provisions; this also means that legal legitimacy takes rationality, consensus and acceptability of provisions as its criterion”; on the other hand, “the democratic rule of law presupposes the achievement of its objectives without an inner adherence to the collective values, not aiming to form conscience in its intimacy, but to shape social behaviours at a purely external level”; and, finally, the “preservation of the freedom of conscience, unshaped by the State and its coercive power, is in itself a final value of the democratic rule of law”.

 

8. The dissent opinion of Justice José de Sousa Brito (adopted also by Justice Guilherme da Fonseca) is particularly relevant in the judgment under discussion, not only because it is opposed to the majority, but also because it examines the issue with a thorough research and abundance of literature, legislative and case law references. The view expressed supports the unconstitutionality of the provision under review for two reasons: breach of Articles 41(6) and 276 of the Constitution of the Portuguese Republic, by refusing to grant the conscientious objector the correspondent status; and breach of Article 18(2), by establishing an unnecessary restriction of a fundamental right. For this purpose, five key aspects were analysed, which merit further attention. First, it is deemed essential that the consequences or effects of the provision be taken into account, which had not been done by the majority. It is noted that infringement of Article 18(2)(d) of Law no. 7/92, i.e. failure to deliver a statement in which the performance of civic service is expressly accepted, leads to the immediate dismissal of the request (pursuant to Article 21) and the consequent failure to obtain the conscientious objector status. As such, the citizen will remain subject to the corresponding military obligations and will be drafted. By refusing to render military service (as per his conscience), he will be considered as a draft evader and held responsible for the corresponding crime (a crime he will commit at each annual draft until he reaches the age of 35, when military obligations cease).

 

9. Secondly, Justice José de Sousa Brito makes a historical and legal analysis of the grounds, rationale, scope and meaning of the right to conscientious objection as established in the Constitution – in our view, a particularly useful exercise for the (global) reflection on this issue, regardless of its specific expressions. By looking for the roots of the Portuguese provision in Article 4 of the German Constitution (at the time the only one that recognised the right to conscientious objection) and referencing also precedents from the North American constitutionalism, it is explained how the German and Portuguese texts stipulate conscientious objection as a fundamental right deriving from freedom of conscience. Since this is not necessarily related to religious issues (as was the case in the 1826 Constitutional Charter, the 1838 Constitution, and the 1933 Constitution), but expressed through convictions that may also be of a philosophical or an ideological nature, establishing itself as “the ‘full’ liberty, even though limited by the ‘general laws of the State’, the great step forward taken by the German Basic Law and, afterwards, by the Portuguese Constitution, besides their own constitutional precedents and the international declarations of human rights, is the recognition of the right to express the freedom of conscience outside of the religious or similar practice, in life practice at large” – which is exactly reflected on the recognition of conscientious objection. After all, the matter here at hand is the right to refuse a legal obligation, in the name of individual conscience, a conflict that is settled through the prevalence of the principle of the inviolability of conscience over the principle of the general application of the law. As such, conscientious objection represents, as stated in the dissenting opinion, the transformation of the principle of tolerance, which is prior to the constitutional state, into a true human right. In fact, this is the full assumption that “the individual conscience is the main ethical support of the democratic rule of law, which bases the power of its rules on the intimate conviction of the people who defend their values and give them reason, more than in the fear of its sanctions”, which acts also as “the ultimate barrier against dictatorships”.

 

10. Moving on to the analysis of whether Articles 41(6) and 276 of the Constitution would be breached, the dissent explores the concept of “total objector” (the person who refuses military service and civic service), focusing specifically and in contrast to the majority on Jehovah’s Witnesses, who oppose on religious grounds to any type of service rendered to the State and, in consequence, to both military service and civic service (“according to the doctrine of this religious belief, a Jehovah’s Witness ‘devotes time, energy and life exclusively to the service of the omnipotent God’, so ‘if this duty was put aside... to perform any other tasks assigned by the State, the Jehovah’s Witness would be infringing the pact in the eyes of Jehovah’ and would be subject to ‘suffer the punishment inflicted on Jehovah’s defectors’, of whose army he/she belongs”). According to this position, it is necessary to draw a distinction between the two objections (to military service and to civic service), since the constitutional right to conscientious objection requires a distinction between the cases in which the right is recognised and those in which it is not – such distinction is made depending on its fundamental nature, since “the right to conscientious objection arises from the basic dignity of the human person (Article 1 of the Constitution) only when the non-recognition of the imperative of conscience entails the violation of the moral integrity, which the Constitution considers inviolable [Article 25(1)]”. As pointed out, this is not a conflict between the will of the majority and the will of the minority (which is inherent to the democratic principle), but an opposition between the principle of the popular will and the principle of human dignity, “as is the case when the democratic law comes into conflict with the structuring rule of the person’s moral integrity, which is considered to be dictated by individual conscience”. Therefore, as the inviolability of conscience relies on the inviolability of the person’s moral integrity (which cannot be coerced into a decision that is unbearable to the conscience and that should establish the exercise of freedom, within the limits of the legal system), the objector to military service can also be an objector to civic service, invoking the same grounds for both objections. Similarly, although it is argued that the Constitution denies the right to objection to civic service, this does not affect conscientious objection to military service, as its non-recognition would imply an unjustified difference in treatment between other objectors, with very significant criminal consequences. The dissent rejects the majority’s view according to which the obligation to render civic service is an alternative to the obligation to render military service, as the former is seen as another obligation, which replaces and follows the withdrawing of the latter, and as such the provision under review indeed breaches Articles 41(6) and 276(4) of the Constitution.

 

15. The dissent opinion also addresses the breach of Article 18(2) of the Constitution, as far as the provision under review affects Article 41(6), which establishes a fundamental right that cannot be restricted except under the cases constitutionally established. The reference “under terms prescribed by law” therein expressed cannot be regarded as a provision of the law, but as a right that is procedurally dependent. The exercise that is made in the judgment concerning the distinction between “constraint” and “restriction” is, therefore, rejected, considering that there is not only a true restriction (as it narrows the material scope of the right in question), but also that all limitations of a fundamental right are necessarily subject to the requirement of constitutional justification imposed by Article 18 (according to a recurring position of the Constitutional Court itself). In this view, the need for the statement imposed by Article 18(3)(d) of Law no. 7/92 should be rejected, as it is not procedurally necessary and constitutes in itself a violation of conscience for Jehovah’s Witnesses, who consider it unbearable.

 

11. Finally, Justice José de Sousa Brito also analyses whether the obligation to render civic service, imposed on the military service objector, infringes the right to conscientious objection stipulated in Article 41(6), since it was generalised following the 1982 constitutional amendment. In fact, by no longer referring to the objection to military service in a specific and limited way, and by displacing the treatment of this issue to Article 276, it can be discussed whether the aim of the constitutional legislator was to “devalue the provision”, because, in principle, Article 41(6) has constitutional superiority over Article 276, which restricts it. The dissent rejects this interpretation, on the basis of historical and comparative references, arguing that Article 276 is part of the conscientious objection regime provided for in Article 41(6), and that a different interpretation would be unconstitutional for breach of Article 276(4) and the principle of equality: “the total objector is not recognised by the Constitution and, as such, remains subject to the substitute obligation of performance of civic service. However, this does not of course prevent the objector to no longer be recognised as a total objector, but as an objector to military service”. It should be noted that the dissent also remarks that this civic service may be fulfilled in alternative ways, some of them acceptable to total objectors, as is the case of Jehovah’s Witnesses, as long as the principle of equivalence towards compulsory military service is respected in terms of duration and degree of arduousness (as is the case in Germany, for instance).

 

12. Justices Luís Nunes de Almeida and Armindo Ribeiro Mendes argue in their dissenting opinion that conscientious objection is a procedurally dependent right, which however does not admit the procedure to recognise the correspondent status to be unlawful: “what the Constitution does not certainly authorise is that, under the guise of a need of organisational nature (organisation of civic service), the ordinary legislator makes the acquisition of the status dependent on a statement of will of the applicant that is available to perform the alternative civic service”. In contrast to the core view of the judgment, the Justices defend that there is no constitutional bilateral nature (between the recognition of conscientious objection to military service and the performance of substitute civic service); what does really exist is a consequence of the recognition of that status, which non-compliance will cause the corresponding penalty. As such, it is defended that the statement required by the provision under review is an aliud to the constitutional text, which seems to be unnecessary and leads not only to the non-recognition of the total objector (constitutionally sustained), but also to the denial of recognition of the objector to military service, when, at the same time, this person is also an objector to civic service. As the latter possibility is not in fact recognised, it does not and cannot lead to a denial of the former.

 

13. In a similar way, the dissent opinion of Justice Maria da Assunção Esteves rejects the majority position, considering that it reverses the “constitutional direction of things”, since the obligation to render civic service can only exist after the conscientious objector (to military service) status is granted and never before. By imposing the statement of acceptance of civic service, Law no. 7/92 is invading the space of freedom of conscience: “in the position of having the objector status, the principles of negative freedom and dignity become intertwined. This position is irrespective of the subsequent need to reconcile actions and establish practical agreement with other rights”. As such, the dissent concludes that the legislative intervention that establishes the procedure to obtain the conscientious objector to military service status can only require the evidence that such convictions are truthful and motivated by conscience, as that is what can be allowed only by the principle of freedom of conscience established by the Constitution – going beyond that, as laid down by Article 18(3)(d) of the abovementioned law, is a strong interference in the private sphere.

 

14. In conclusion, it seems for us important to highlight, on the one hand, the attempt made by the Court (in the majority decision) to not discuss the reason for conscientious objection, assuming that all conscientious objections are equal according to the law (an attempt to avoid discussion on discrimination against certain religious beliefs). But, on the other hand, it can be also noted (through the dissenting opinions) that such treatment ends up making a distinction and harming Jehovah’s Witnesses (and potentially other citizens as well), since their situation as total objectors turns out to be harmed in comparison with those who object to military service only.

 

Flávia Noversa Loureiro

 

Citar como: LOUREIRO, Flávia Noversa, ?[Anotação a] Tribunal Constitucional, acórdão n.º 681/95, 05.12.1995?, 2021, disponível em https://inclusivecourts.pt/jurisprudencia2/

 

REFERENCES IN THE LITERATURE:

COUTINHO, Francisco Pereira, “Sentido e limites do direito fundamental à objecção de consciência”, Working Paper 6/01, 2001, Faculdade de Direito da Universidade Nova de Lisboa, available at https://www.fd.unl.pt/Anexos/Downloads/223.pdf

GARCIA, M. Miguez, O Direito Penal Passo a Passo, vol. I, 2nd ed., Coimbra, Almedina, 2015.

GOUVEIA, Jorge Bacelar, GOMES, M. Saturnino da Costa, e LOJA, Fernando Soares, Direito da Religião. Textos Fundamentais, Lisbon, INCM, 2015.

MACHADO, Jónatas, “A jurisprudência constitucional portuguesa diante das ameaças à liberdade religiosa”, Boletim da Faculdade de Direito da Universidade de Coimbra, vol. 82, 2006, pp. 65-134.

 

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