How to Adjudicate Wrong Facts
Sometimes we may face a problem in adjudicating when two teams present contradictory facts, which would definitely mean that one of those facts is fake (or misanalyzed). Whether the adjudicator truthfully knows the truth or not, both would present different level of problems to the adjudicator in judging the particular clash. These are my findings to deal with the matters.
There are two doctrines (sounds cool, eh? :p Credits of lingo to Rizky Wirastomo) which I have seen its practice, and to be considered of its plusses and minuses.
The first one is what I used to be told some years ago, which is the average reasonable person doctrine (yep, I made up the name). One of the basics of adjudicating is that the judge must be an average reasonable person, meaning that they have to be a person (natuurlijk person, in this context, LoL), reasonable in the sense that they are capable of basic logical usage (identifying how a hypothesis is proven, weighting, pointing irrelevancies and inconsistensies etc), and is average –not necessarily in IQ, but in knowledge where a judge must remain as a generally informed person without any specific indepth knowledge (certainly, except for debating and adjudicating rules from which a judge must be a master).
The point of knowledge is perhaps what goes in the way of an adjudicator from independently declaring a fact true or false, as personal knowledge would consequently be beyond fairness to use. This is also against principles of impartiality where a judge may not interfere to a debate.
This principle, however, consequently only applies to a clash of fact which its validity involves deep personal knowledge on a certain area of study discipline. An example would be what I faced in round 3 of JOVED 2011, in the motion of THBT Courts should not recognize prenuptial agreements, where I was panelist with Wishnu (STMIK AMIKOM) serving under Kiki (UNDIP) as chair adjudicator.
When the debate was contextualized to be within Indonesia’s legal system, I found it quite troubling when team opposition simply said : “..without prenuptial agreements, the judge has no basis of in deciding and thus cause more conflicts and injustice.” This is very wrong, as the fact is that there are many kinds of law sources which judges can apply accordingly owing to the circumstances of the marriage and origins of the persons (Adatrecht, islamic laws, and Burgerlijk Wetbook –Indonesian code of civil laws, but in Dutch it sounds cooler). But that is my specific knowledge as a law student, thus I did not insert these as reasonings for my judgement.
Keeping the average reasonable person doctrine in mind, in another instance, I could then penalize a team for saying: “Adolf Hitler is a British Lady, married to Genghis Khan in 2004, and started the communist party in China” (extremely speaking, of course).
Or in a more debate relevant context, when an opposition challenges a definition on the basis of squirreling under the motion of TH Would Put Soeharto behind bars. In that debate, team government defined Soeharto as some random becak driver who was prosecuted for some random reason (it was a practice session in my old highschool). Opposition, apparently with their senses still intact, along with their challenge proposed an alternate definition which defines Soeharto as Indonesia’s former president. The adjudicator would then have complete liberty to penalize team government for what they did, and favor the attempt done by the opposition.
But then, confusions may happen in determining where is the thin red line between what is an average reasonable fact or not.
In another debating competition, a preliminary round of IVED (Indonesian Varsities English Debates) 2006, team Universitas Sanata Dharma (USD) lost a round. Among the reasons delivered by the judge (Astrid Fina, from UI), the statement from USD: “reducing carbon emissions in just one country will not help reduce global carbon emission levels as a whole” was a wrong fact determinable by an average reasonable person and therefore was penalized despite the other team not responding to the point. Team USD was not quite satisfied by that reasoning, and thought that the judge interfered in the debate too far. As a disclaimer, I am not judging as to whether I do or do not agree with that judgement.
I faced similar problems in the same prenuptial marriage agreement above. Team government argued “Prenuptial marriage agreements are not legal, because it was not agreed upon within the marriage” (which I know is wrong), when team opposition responded “any agreements are simply legally binding to parties and could be used as evidence in court, when there is a consentual agreement between the parties” (which I know is close to the truth). Such knowledge is very elementary in the study of law, so elementary that it perhaps might as well be a common knowledge. Another analogy would be: the full function and jurisdiction of the International Criminal Court is clearly an indepth knowledge, but one could easily conclude that you dont apply for divorces there. But in the other hand, I am not completely sure either because this does not sound as stupid as applying for divorces in a CRIMINAL court.
So to ensure myself, I used the second doctrine –The doctrine of underlying logic. This is also a knowledge taught since quite a while ago at least in Indonesian debating practices (and was among the accreditation test questions in JOVED 2011). If I did not know the truth among the contrast facts, this doctrine would definitely be my only choice. This doctrine points that a fact is a mere attribute to the construction of an argument.
An argument should consist of an Assertion, Reasoning, Evidence, and Link. Since an evidence can not simply replace an argument so it has to be sustained with analysis and the holistic proving will lead to support one big assertion as a heading. So a fact, acting as an evidence, would mean nothing when holistically considered with so many other things.
So in that case of prenuptial marriage agreement, I also considered that team government simply mentioned that claim and took it for granted. On the other hand, team opposition explained that prenuptial agreements are pretty much arrangements on wealth division while the rights of wealth are private matters which could be concluded upon in any agreement depending on the party’s convenience –therefore it does not have to be done within a marriage. So it was then easy to me to tip the scales in favor of the opposition.
Putting both doctrines in mind, I would recommend a combination between the two. Sometimes two teams are just too riddiculous to point out even the most obviously retarded factual errors, let alone putting any logic behind them. Sad fact, but yes. In NUEDC Kopertis Selections 2011 DIY Region, preliminary rounds, a team actually said “We need husband consent for abortion, because we dont want abortion. Men are logical so they will never agree, while women are illogical and would most likely kill their babies”. And yes, the other team did not respond. It sounds like assertions, really crazy assertions, but they treat that as biological facts. Certainly, you do not need a team to point that out. This average reasonable person doctrine could perhaps only come in place in such extreme severe issues like this, but not undermining the doctrine of underlying logic.
Beyond that severe extremety, the judgement reasoning would go to the second doctrine of underlying logic. This is perhaps the best method to ajudge facts, as they all function collaboratively within a whole case of arguments and provings as some previous examples have shown.
Problems which both doctrines perhaps can not solve as simple as that
In the 6th preliminary round of JOVED 2011, I chaired a low room debate with two panelists. The motion was that THBT Criminal Defendants must Only Use Government Appointed Lawyers. Long story short, that debate was a catastrophy. Barely anything went right, other than the fact that they at least spoke in english and neither speakers surrendered. It was an extremely far below average debate.
Among the arguments was team government claiming that in a criminal trial, the burden of proof is solely in the hands of the defence lawyer. Consequently, if the lawyer bullshits then the judge will magically believe him and say “Okay, you are free of all charges. Have a safe trip home.”. This is definitely wrong on all levels. But then team opposition seemed to take that for granted, and decided to say: “but the judge is a highly qualified person” and therefore would somehow see through all the facts or something.
These facts are just equally riddiculously wrong. The latter believes so much that judges somehow has legilimens (mind reading: more information, check Harry Potter and the Half Blood Prince), while the former –apart from my knowledge as a law student—somehow believes that real criminal trials relies on something THAT lame. I believe that both cases, average reasonable knowledge would eliminate both.
Seeing the underlying logic behind them does not help. Assuming that a court’s burden of proof solely and ultimately relies on defence lawyers, the assumption that ‘criminal defendants will always escape justice’ is therefore logic. In the other hand it is then true that defence lawyers can not simply lie if then judges can ‘see through the facts’ (I wonder it comes with the ability to see through clothes). And then everything falls down to barely any sense at all. But here is the pragmatic reality. Although unpaid, our job is to judge that.
In that debate, I simply judged that clash as a moot. I wont give credits to either of them. One principle of adjudicating I always emphasize when lecturing about adjudicating is “siapa yang menanam dia yang menuai” (“thy harvesth what thy planteth” –Fajri Doctrine? Or, Harvest Doctrine? ROFLMAO). So both teams on one particular clash managed to provide complete logic in a Tifatul Sembiring kind of way? So I give them both accordingly.
This is perhaps where a debate should be seen holistically for us to seek a final judgement. The aforementioned analysis is simply a single clash judgement, which there could be many clash judgements for us to then approach our final judgement. I left this clash alone, and moved to the –barely existant– other clashes.
Luckily, the opposition clashed the same point brought by the government with a different rebuttal also which was “but there is the opponent lawyer”. Well, in my knowledge of law this is wrong because in criminal law a defendant will face a prosecutor –not the opponent lawyer (although in some cases victims may have legal counsels too who may help the prosecutors in finding evidences).
But then the importance of the existence of this “opponent lawyer” was not analysed, simply mentioned as “..but there is an opponent lawyer” and full stop. So as much as it I can not eliminate this fact on the basis of the average reasonable doctrine (since I thought it would be a degree of a specific knowledge to differ criminal and private law procedure, not to mention they both provide the same notion of ‘counter burden of proof to balance things out’), but there simply isnt any logic behind that one-liner fact without even an assertion.
So I had to pick between a wrong ass fact wrapped with a technically valid assertion supported Tif Sembiring logical argument versus a merely one liner fact with a merely ‘implied’ assertion –let alone underlying logic. It thusly slightly tips to team government. As a minor addition to that, the Adjudication Core meeting on the first day had agreed that “clash of contrast facts are judged based on the logic behind it” and since I did not think of confronting that notion with the average reasonable doctrine then it would simply be unjust for me to not use that agreed notion.
These are my views, I hope there could be constructive feedbacks on this to improve debating knowledge.
JDF-er For Life