Memorandum

To: Atty. Rolly Francis Peoro

From: Trixie Arre, 11981377
Date: October 16, 2019
Re: Bagumbungan Cave Explorers – Murder Case; File #1234

Facts:

On April 25, 2018, five cave diving explorers, who are members of the Filipino Cave
Divers Inc. (FCD), went inside the Bagumbungan Cave located at Marinduque, Philippines.
Filipino Cave Divers is business name of a non-profit SEC registered group. Its primary focus
is on the exploration, survey and subsequent protection of underwater systems in the
Philippines1. While inside the cave, a landslide occurred. Because of the landslide, the one
and only entrance to the cave was blocked, hence, trapping the divers inside the cave. The
other members of FCD haven’t heard from the divers for more than 2 days so they decided to
go to the cave site and saw the effects of the landslide. Upon discovery of the blocked
entrance, rescue operations started. The operations were seen to be difficult due to the hard
accessibility and the size of boulders that needed to be removed from the entrance. It was the
security and health of the divers that was the main concern. Everyone knew that it was race
against the clock since the divers might not have enough food and drinkable water.
Fortunately, the divers had a satellite radio with them which made it possible to establish
communication with the divers. The divers asked the head of the rescue operations how long
the rescue would take and the latter answered that it would take at least ten (10) days to do so.
They further asked about the possibility of surviving without food for 10 days, and the on-site
medical physician that time answered that it’s highly unlikely. One of the divers, Joaquin
Alvarez, then asked the physician, if they would be able to survive if they ate one of their co-
divers, and the physician reluctantly confirmed that there’s a chance for survival. Since then,
no other communication was received from the divers. Ten days later from the conversation –
this marked the 20th day of entrapment inside the cave – the divers were rescued. It was
immediately discovered that Alvarez was found dead and some parts of the body was eaten.

The four other divers namely, Juan Cruz, Joel Arce, Rex Enriquez and Ding Ople, were
accused for the murder of Alvarez. The Regional Trial Court of Boac, Marinduque found the
accused divers guilty of murder, due to the attendance of evident premeditation. The divers
were sentenced to reclusion perpetua, hence, this petition to the Supreme Court.

1
Filipino Cave Divers. The FCD, https://filipinocavedivers.com/home/

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 The divers claim that they didn’t have any malice in killing Alvarez and that they did the
act as a matter of human survival. Further, based on their sworn affidavits, the idea of such act
was proposed by Alvarez, wherein they drew sticks against each other to know who will meet
an unfortunate fate. According to the accused, the agreement was made to avoid all of their
deaths, and found that a better outcome would just be the death of one. They claim that they
should be exempted from criminal liability because of they were acting under the impulse of an
uncontrollable fear, which is their death.

Issue:

Should accused Arce, Cruz, Enriquez and Ople be found guilty of murder for the death
of Alvarez or exempted from the crime, considering that the act was done due to fear of all of
their deaths?

Discussion:

1. Defining murder
According the Revised Penal Code2, any person shall, who not falling within the
provisions of Article 2463 be guilty of murder and shall be punished by reclusion
temporal in its maximum period to death, if committed with any of the following
attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense or of means or persons to insure or afford
impunity.
2. In consideration of a price, reward, or promise.
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel,
derailment or assault upon a street car or locomotive, fall of an airship, by means of
motor vehicles, or with the use of any other means involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding paragraph, or of
an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public
calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse

2
Rev. Pen. Code, art. 248
3
Rev. Pen. Code, art 246. Parricide. — Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants,
or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death.

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 Based on the facts of the case, it’s clear that the accused divers were the ones
who caused the death of Alvarez. Due to the attendance of evident premeditation, the
crime was qualified to murder. For evident premeditation to be present, the following
requisites must be present4:

1. The time the offender has determined to commit the crime;

2. The act manifestly indicating that the culprit has clung to his determination;
3. A sufficient lapse of time between the determination and execution to allow him
to reflect upon the consequence of his acts and to allow his conscience to
overcome the resolution of his will had he desired to hearken to its warnings

The divers were proven to have determined to commit the crime in pursuance to their
goal of survival and the second requisite is also present as it was shown that they have
clung to that determination when they even decided to draw. There was also sufficient
lapse of time between the determination and execution as they had sufficient time to
deliberate whether to pursue their act. One hour is considered sufficient lapse of time.5
With all the elements of evident premeditation present, the accused divers can be said
to have committed murder.

2. Exemption from the crime

The accused divers claim that they should be exempted from the crime, invoking Art.
12, paragraph 6 of the Revised Penal code which states6:

Article 12. Circumstances which exempt from criminal liability. – The following are
exempt from criminal liability.

….6. Any person who acts under the impulse of an uncontrollable fear of an
equal or greater injury.

For the exempting circumstance to be present, a person should be compelled to commit

a crime by another by means of intimidation or threat.7 Based on the circumstances,
there wasn’t any person present that would compel the divers to do the act. There
wasn’t any direct threat given them by anyone. It can’t also be said that it was Alvarez
who compelled them as it was just a mere suggestion given by Alvarez, made in the
absence of any threat or intimidation. Their fear of death was still speculative and not
affirmed to happen right then and there. With this, the accused cannot claim any
exempting circumstance.

4
122 SCRA 123 (1983), citing People v. Beralda, 91 SCRA 125)
5
92 SCRA 198 (1979)
6
Rev. Pen. Code, art. 12
7
Reynaldo G. Ros, Fundamentals of Criminal Law 53 (2009).

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Recommendations:

1. Dura Lex Sed Lex, it is harsh, but it is the law.

Considering the demise of the divers, perhaps, the divers deserve some sympathy as
they were acting for self-preservation and survival and that they should be absolved of
any criminal guilt. However, it’s a well settled that the courts are not concerned with the
wisdom, efficacy or morality of the laws. Courts are not the forum to plead for sympathy.
It is the duty of the courts to apply the law, disregarding their feeling of sympathy or pity
for an accused. 8 But this doesn’t mean that the accused divers are left without any
hope. One of the duties of the courts in cases of excessive of penalties is covered by
Article 5 of the Revised Penal Code which states9:

…The court shall submit to the Chief Executive, through the Department of Justice,
such statement as may be deemed proper, without suspending the execution of the
sentence, when a strict enforcement of the provisions of this Code would result in the
imposition of a clearly excessive penalty, taking into consideration the degree of malice
and the injury caused by the offense.

The court may be in opinion that the accused should be exempted from criminal liability
because of the reason behind the act, but the court should still impose the proper
penalty based on the case and can just write a statement as to why the accused
shouldn’t have any criminal liability. The Revised Penal Code provides scenarios how
criminal liability can be extinguished, namely10:

1. By the death of the convict, as to the personal penalties; and as to pecuniary

penalties, liability therefor is extinguished only when the death of the offender occurs
before final judgement;
2. By service of the sentence;
3. By amnesty11, which completely extinguishes the penalty and all its effects
4. By absolute pardon12
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended woman, as provided in Article 344 of this Code

8
1 Luis B. Reyes, The Revised Penal Code 93 (19th ed., 2017)
9
Rev. Pen. Code, art 5.
10
1 Luis B. Reyes, The Revised Penal Code 857 (19th ed., 2017)
11
1 Luis B. Reyes, The Revised Penal Code 861 (19th ed., 2017); Amnesty is an act of the sovereign power granting oblivion or a general pardon for a
past offense, and is rarely, if ever, exercised in favor of a single individual, and is usually exerted in behalf of certain classes of persons, who are
subject to trial but have not yet been convicted.
12

1 Luis B. Reyes, The Revised Penal Code 862 (19th ed., 2017); Pardon is an act of grace proceeding from the power entrusted with the execution of
the laws which exempts the individual on whom it is bestowed from the punishment the law inflicts for the crime he has committed.

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 If court is persuaded that the accused are given excessive penalties, the court has the
duty to inform the Chief Executive of such situation and with this, the accused may be
relieved of any criminal liability.

2. Court should maintain stand on imposing penalty; separation of powers

According to Justice Frankfurter, the making of changes in established policy is
peculiarly a legislative function. Judges on the other hand, “are under a special duty not
to over-emphasize the episodic aspects of life and not undervalue its organic
processes..”13 A judge is in a contradictory position; he is pulled by two opposite forces.
On the one hand he must not enforce whatever he thinks best; he must leave that to the
common will expressed by the legislature. On the other hand, he must try as best he
can to put into concrete form what that will us, not by slavishly following the words, but
by trying honestly to say what was the underlying purpose expressed.14
With this, changing the penalties or what the statutes say is definitely a legislative
function and shouldn’t be done by the judiciary, because of the doctrine of separation of
powers. The separation of powers of powers is a fundamental principle in our system of
government. It obtains not through express provision but by actual division in our
Constitution. Each department of the government has exclusive cognizance of matters
within its jurisdiction, and is supreme within its own sphere.15 The legislative department
has the power to make laws, alter, and repeal them.16 Given the separation of powers,
the Court can just apply the law that were created by the legislative. The power is with
the legislative to change our laws that may be favorable to the society. It may be
recommended that the legislative also change some provisions on the exemptions to
criminal liability, given the scenario presented by the accused divers.

Conclusion:
The accused divers, Arce, Cruz, Enriquez and Ople are found to be guilty of murder of Alvarez,
with the attendance of evident premeditation. The intent of the killing was due to their fear of
death of being trapped in the Bagumbungan Cave without any food. Even if their motives
weren’t ill against Alvarez, still they couldn’t be exempted from criminal liability since there
weren’t any exempting circumstances applicable based on the Revised Penal Code. In spite of
this, the criminal liability of the accused can be extinguished by absolute pardon or amnesty. If
the Court feels that penalties are excessive when applied to the accused, considering their
situation, the Court may write to the Chief Executive a statement. The court doesn’t have any
other option but to apply the penalty in the meantime, but there’s a possibility of amnesty for
them.

13
Wallace Mendelson, Mr. Justice Frankfurter on the Construction of Statutes, 43 Calif. L. Rev. 652, 658 (1955)
14
Wallace Mendelson, Mr. Justice Frankfurter on the Construction of Statutes, 43 Calif. L. Rev. 652 (1955)
15
415 SCRA 44 (2003)
16
Philippine Information Agency, How the Philippine Government is Organized, https://pia.gov.ph/branches-of-govt (2019)