Compulsory education for convicts

[saksakgp]

Because I addressed the aspects of section 12 in that compulsory education makes no limitations on it. So unless you'd like to use case law, precedent, or logic to rebut my post, we can assume that you concede that section 12 is not infringed in any way. IANAL, however the constitution is quite straight-forward, so perhaps there is a logical argument to be had here where you can show me where section 12 rights are infringed upon?

I don't see why I should bother to amicable reply in detail to your posts if you're simply going to ignore them and pretend that they didn't happen...

I've been ignoring your posts because they don't make sense to me. Section 12 protects the right to freedom and security of the person, this proposal will take away freedom protected in this section. A prisoner must choose to get an education, the state must not impose education on the prisoner. And in fact there will be prisoners who choose not to take part hence I asked how will they be dealt with. If they are punished for exercising their right to freedom of choice then that will be unconstitutional. Not being given parole on well tested established grounds may be considered punishment and also infringement of section 9. Being given an extended sentence for choosing not to be educated will be an infringement of section 10 and section 15.

The state can only impose laws/policies that are sanctioned by the constitution. All other laws/policies must first respect provisions of the constitution most importantly the bill of rights. If the bill of rights says that a South African is free to choose then no law/policy can say “no you can't choose”, notwithstanding any other limitation contained in the constitution.

The state can only respect section 12 by introducing this policy only at mitigation of sentence in court. The court will explain that there is a new sentencing structure where the convict can CHOOSE to commit to education in prison and after successful completion a year or two will be reduced from the sentence, further study – further reduction. All of them will choose this, some might come out sooner with PhDs. An offer can also be made to current inmates, they will choose it too. Much better than imposing.

Last point. There are many laws that are unconstitutional such as the schools act declaring compulsory education, problem is that the concourt hasn't been asked to test these laws. The police need to first arrest parents for not sending their children to school, that's when the concourt will be asked to pronounce. A prisoner being punished for choosing not to take up compulsory education will definitely land the matter in the concourt.

 

[Freshy-ZN]

snip

Pretty much covers it I think.

 

[DJ...]

I've been ignoring your posts because they don't make sense to me. Section 12 protects the right to freedom and security of the person, this proposal will take away freedom protected in this section.

Well, in my previous posts I addressed section 12, but moreover, please state the specific freedoms infringed upon. Don't just state section 12 and then leave it at that. What specific freedoms are infringed upon, in terms of section 12 of the constitution?

A prisoner must choose to get an education, the state must not impose education on the prisoner.

This is your personal opinion, and you are entitled to it. I'm specifically asking where you see the constitutional illegality of such a move? Your personal position was easy to infer...

And in fact there will be prisoners who choose not to take part hence I asked how will they be dealt with.

And there will be prisoners who choose not to take part in searches of their cells. Some will object to being held in incarceration. Some will object to being forced into a cell each day and at specific times. Some will object to limited movement to certain areas and at certain times. Simply holding an objection to something does not make it unconstitutional. At what point is compulsory education breaching someone's human rights? There is no fundamental human right protecting someone from education. In fact education for all is a constitutional protection, so favour is in the compulsory education fray...

Not being given parole on well tested established grounds may be considered punishment and also infringement of section 9. Being given an extended sentence for choosing not to be educated will be an infringement of section 10 and section 15.

That's not how this works. Parole is not a right. It absolutely isn't. It is a mechanism with which to control prison populations. Moreover, quote the specifics of the sections you claim it breaches. I cannot address your posts if you simply throw broad statements about and then claim absolution.

But that aside, various metrics already make up parole approval or denial decisions, and adding education participation (note, not passing) is in absolutely no way unconstitutional as far as I can tell. Remember that you are the one making the claims - you need to back them up. Right now you haven't backed your claims up with anything - you are working on emotional reasoning by the looks of things, or at least personal opinion, and assuming the constitution enshrines your opinion. That's also not how this works. We can actually have a real debate if you start using specifics of where you see potential breaches of basic human rights...

The state can only impose laws/policies that are sanctioned by the constitution.

Again, that's also not how it works. Laws are not sanctioned by the constitution before being passed. They are subject to the constitution and its stated rights, but it doesn't pass constitutional scrutiny per say until tested, as you rightly go on to point out later...

If the bill of rights says that a South African is free to choose then no law/policy can say “no you can't choose”, notwithstanding any other limitation contained in the constitution.

Freedom of choice is not some all encompassing freedom. It too has its limitations. You cannot legally choose to murder. You cannot legally choose to do drugs. You cannot legally refuse a search of your home if the law allows for it. You cannot legally refuse to attend court if requested. You cannot legally refuse many, many things. Stop assuming that one has some all encompassing freedom to choose whatever the hell they like. Moreover, there is no overall freedom of choice in our constitution. There is freedom of choice of political association. There is freedom of choice of religion. There is freedom of association. There is no all encompassing freedom of choice.

Again, this will be far easier if you quote the specific section of the bill of rights that you believe will be potentially infringed upon here...

The state can only respect section 12 by introducing this policy only at mitigation of sentence in court.

Not in the least is this true. Issues like this are addressed on a principle basis, not on an extent of use basis. It is either unconstitutional to use in any decision-making manner, wholly, or it isn't. One cannot use unconstitutional principles only in limited form. That's not how it works...

The court will explain that there is a new sentencing structure where the convict can CHOOSE to commit to education in prison and after successful completion a year or two will be reduced from the sentence, further study – further reduction. All of them will choose this, some might come out sooner with PhDs. An offer can also be made to current inmates, they will choose it too. Much better than imposing.

Sure, your opinion again, but wholly different to what we're discussing, so irrelevant to the discussion as far as I'm concerned, regardless of how nice it sounds to you. Personally, I opt for the forced education bit. As it is, education is provided to a limited extent in prisons, and contrary to your claims, people don't simply choose them. And I must re-iterate, I do not want to be giving rapists lighter sentences because they agree to the education. Psychopaths, sociopaths and the like will not benefit from education, but they will use the option to their advantage. Take the option away and simply force it on them. No incentives for doing so. Bugger that. It's not a resort...

Last point. There are many laws that are unconstitutional such as the schools act declaring compulsory education

It absolutely isn't, as far as I can tell. You are still yet to prove this point - don't address it as fact and base your argument thereon. Let's deal with the specifics, please...

problem is that the concourt hasn't been asked to test these laws.

Please name all of the current unconstitutional laws that you have come up with. You state that there are many. Which ones, specifically? All laws limit one's scope to some degree - that is how they work. To state that freedom of choice is infringed because a law limits you in some way is nonsense, for nearly all cases, except those where it is discriminatory. Compulsory education is not discriminatory in any way. So in order for you to use your freedom of choice argument, you'd have to, by extension, argue that absolutely every law is unconstitutional. I hope you're a helluva lawyer...

The police need to first arrest parents for not sending their children to school, that's when the concourt will be asked to pronounce.

It has been tested in court.

http://www.cyc-net.org/today2003/today030225.html
http://www.sowetanlive.co.za/news/2010/10/14/truant-teen-moms-face-arrests
http://www.thepost.co.za/jailing-parents-of-truants-harsh-1.1210288?pageNumber=2#.UThBL1qPgzI

As harsh as it might sound to you, it is the law. The law of the land that you live in. And it is not unconstitutional at all...

A prisoner being punished for choosing not to take up compulsory education will definitely land the matter in the concourt.

based on your legal opinion on the matter? No, this is based on your personal opinion. No rights would be breached in this process whatsoever as far as I can tell, but I too am not a lawyer. However I suspect that I have considerably more legal exposure than you, as you're yet to point anything out in terms of the specific legalities or illegailities of the matter...

 

[saksakgp]

DJ what you say doesn't make sense to me and I'm sure what I say doesn't make sense to you. We have opposing opinions and it's unlikely that we'll convince each other to think differently.

I spend a lot of time reading judgements on this site www.saflii.org.za Ive read most of the concourt judgements and so I think that I know how the court thinks. My opinion on this is based mainly on how I think the constitutional court thinks. But for what it's worth I could be wrong.

I found this judgement most interesting. The court had to balance a clash of rights. Their thinking shows how they approach rights in the bill of rights. This judgement has nothing to do with this topic, I read it because Desmond Nair used it in his Oscar judgement.

www.saflii.org/za/cases/ZACC/2006/15.html

 

[DJ...]

Unfortunately the court does not rule on your opinion. My posts are incredibly simple to decipher. Holding an opposing opinion doesn't preclude you from understanding them. And I am more than capable of understanding your posts, don't worry.

You're saying that compulsory education infringes on section 12 of our bill of rights. So please quote the relevant parts of section 12 and marry them with your argument. That is all...

 

[saksakgp]

Section 12

Freedom and security of the person
(1) Everyone has the right to freedom and security of the person, which includes the
right-
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.

(2) Everyone has the right to bodily and psychological integrity, which includes the
right-
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their informed consent.

Notwithstanding any limitation contained elsewhere in the constitution only, compulsory education for prisoners will be inconsistent with “Everyone has the right to freedom and security of the person”. The phrase “which include the right” does not preclude any other freedom not mentioned in the subsection. See section 39(3)

Notwithstanding any limitation contained elsewhere in the constitution only, compulsory education for prisoners will be inconsistent with “Everyone has the right to bodily and psychological integrity”. The phrase “which include the right” does not preclude any other freedom not mentioned in the subsection. It is this right that gives women the freedom to abort a fetus, in this case only the word “psychological” applies and prisoners will have the freedom to abort education.

Section 10

Human dignity

Everyone has inherent dignity and the right to have their dignity respected and protected.

Notwithstanding any limitation contained elsewhere in the constitution only, forcing prisoners to take part in education or punishing prisoners who choose to not take part will be inconsistent with “Everyone has inherent dignity and the right to have their dignity respected and protected.”

Depending on how they deal with prisoners who choose not to take part and notwithstanding any limitation contained elsewhere in the constitution only, inconsistency with section 9 and section 15 is possible.

I've done what you asked DJ. Now you going to try to poke holes with your examples and I'll come back with counter examples and it will never end. That's why we have courts - to provide finality to disputes.

 

[DJ...]

Sure, I agree. We're getting nowhere. You're now quoting the relevant section but not substantiating your point of view - simply stating as such, so we're back to where we began...