POSITION PAPER: AFFIRMATIVE

CASE OF THE
SPELUNCEAN
EXPLORERS

FFAM Law
Florita.Fontanosa.Andrino.Makinano
Senior Associate: Alianza

Associateaavkgnwognwgrg
I. Statement of Relevant Facts:

Early in May of 4299, a group of five men, members of the Speluncean Society which is
an organization of amateurs interested in the exploration of caves, penetrated into the interior of
a limestone cavern in the Central Plateau of the Commonwealth of Newgarth. A landslide
occurred and caused boulders to fall and block the entrance of the cave, thus leaving them
trapped and stranded. On the failure of the explorers to successfully return to their homes, the
Society was notified by their families. A rescue party was immediately dispatched to the site.
The work of removing the obstruction was overwhelmingly difficult, especially due to the fact
that landslides were continuously happening. The work went on for more than thirty days after
the explorers entered the cave. On the twentieth day it was learned that they had with them a
portable wireless communication device capable of sending and receiving messages. With the
help of such device the group learned that they will have to stay for at least ten days in the cave.
The group was anxious since they no longer had food and no perishable were existing in the
cave. The chairman of the committee of physicians told them that it was likely that they were not
going to survive in the next ten days due to starvation. Hours after knowing this Whetmore, the
deceased asked the physicians whether they would survive for ten days longer if they consumed
the flesh of one member of their group. Reluctantly, the chairman said that it was very possible.
Because no one in the rescue team were able to advise the group of explorers on how to decide
who among them should be eaten, Whetmore proposed to the remaining four members that they
should cast lots with the use of a pair of dice. At first, the other four members, the defendants in
this case, was reluctant but was later convinced by Whetmore. Right before the dice were cast,
Whetmore wanted to back out from the agreement but was nevertheless forced by his
companions to proceed with what was agreed upon. When it was Whetmore’s turn, one of the
defendants cast the dice for him and the former stated no objections to such. The throw went
against him. Whetmore was then put to death and eaten by his companions.

When they were finally out of their unfortunate situation and out of the cave, the four
survivors were tried for the murder of Roger Whetmore. The foreman of the jury, a lawyer asked
the court whether the jury might not find a special verdict thus leaving it to the court to say
whether on the facts the defendants were guilty. The trial court found the four defendants guilty
and sentenced them to hang. After the decision, the jury members and the trial judge
communicated to the Chief Executive asking that the sentence be modified and made just
imprisonment of six months. The Chief Executive is still awaiting the decision of this Supreme
Court of Newgarth.

II. Issues:
A. Whether the law of the Commonwealth still governs the defendants.
B. Whether or not the defendants’ act of cannibalism constitutes murder.
C. How the Section 12-A of the Consolidated Statutes of Newgarth should be interpreted.
D. The role of the law versus the role of government regarding clemency.
III. Summary of Arguments:
A. The explorer are nationals and citizens of Newgarth and the act was performed in
Newgarth which falls under the territorial jurisdiction of the Commonwealth thus the law
of the Commonwealth governs.
B. The act of wilfully and deliberately killing their companion constitutes murder.
C. The object of all interpretation and construction of statutes is to ascertain the meaning
and intention of the legislature, to the end that the same may be enforced. Legislative
intent is determined principally from the language of the statute.
D. Clemency should be sought as the strict imposition of the stature would result in a
penalty which is clearly excessive

IV. Arguments:
A. The territoriality principle is a principle of public international law under which
a sovereign state can prosecute criminal offences that are committed within its borders.
The principle also bars states from exercising jurisdiction beyond their borders, unless
they have jurisdiction under other principles such as the principle of nationality, the
passive personality principle, the protective principle, and possibly universal
jurisdiction.1 the explorers are nationals and citizens of Newgarth, and on that basis our
criminal laws may be extended to them even if they were outside the territorial limits of
Newgarth. (Of course they were not; they were in a cave within the Commonwealth.)
Second, they killed a national of Newgarth and thereby harmed the Commonwealth itself;
accordingly, Newgarth has a right of vindication through its criminal law process. Third,
the defendants expected to be rescued by citizens of Newgarth, and hence their
"captors"—the first persons who would have jurisdiction over them—would be persons
subject to our laws. Fourth, the taking of the life of another is the gravest possible
violation of a human right enjoyed by everyone wherever located. Even if Judge Foster
were correct that legislative power did not reach these explorers in their cave, our laws
would provide a statutory" and administrative basis for enforcing the universal
prohibition against murder whenever perpetrated. Finally, legal analysis requires us to
consider the purpose of the statute. The purpose of the present or any other criminal
statute is not primarily to punish someone for a past act, but to deter the act from ever
taking place. Such statutes institutionalize rights-the rights accorded to every person to
not be the victim of criminal acts. The purpose of the statute in the present case,
therefore, is to give to potential murder victims the protective power of the state. 2

B. The act of willfully and deliberately killing their companion constitutes murder as
Section 12-A of the Consolidated Statutes of Newgarth, N.C.S.A. (N.S.) § 12-A,
provides: "Whoever shall willfully take the life of another shall be punished by death."
The statute permits of no exception applicable to this case thus the conviction of the trial
judge was not only fair and wise, but the only course open under the law. 3 These men

1
Randall, Kenneth C. (July 2004). "Recent Book on International Law: Book Review - Universal Jurisdiction:
International and Municipal Legal Perspectives". American Journal of International Law.
2
D'Amato, Anthony, “The Speluncean Explorers--Further Proceedings” (2010). Faculty Working Papers. Page 98
3
Opinion of Judge Truepenny
 acted not only “willfully” but with great deliberation and after hours of discussing what
they should do. 4 The obligation of the judiciary is to requires that judges put their
personal predilections out of their mind when they interpret and apply the law of the
Commonwealth. From the principle of the supremacy of the legislative branch of
government flows the obligation of the judiciary to enforce faithfully the written law and
to interpret that law in accordance with its plain meaning without reference to our
personal desires or our individual conceptions of justice.5
C. If the language of the statute is plain and free from ambiguity, and express a single,
definite, and sensible meaning, that meaning is conclusively presumed to be the meaning
which the legislature intended to convey. Judicial dispensation does more harm in the
long run than hard decisions. Hard cases may even have a certain moral value by bringing
home to the people their own responsibilities toward the law that is ultimately their
creation, and by reminding them that there is no principle of personal grace that can
relieve the mistakes of their representatives. 6 Even in simpler times uncertainty has been
regarded as incompatible with the Rule of Law. Rudimentary justice requires that those
subject to the law must have the means of knowing what it prescribes. As laws have
become more numerous, and as people have become increasingly ready to punish their
adversaries in the courts, we can less and less afford protracted uncertainty regarding
what the law may mean. The proper role of a judge is to interpret laws, not to make them.
Sovereignty resides with the people through our elected representatives and within
constitutional constraints.  In other words, ours is a representative democracy, in which
we vote for representatives who enact laws on our behalf; and the validity of those laws,
and the process by which they are enacted, are subject to a written constitution.7 Our
Founders adopted a written constitution because they distrusted government.  Time and
experience had taught them that government, unless checked, is prone to abuse power; it
can and will, over time, encroach on our freedom.  So, they sought to create a
“government of laws, not of men”—through which we would be governed not by the
whims of our leaders, but by the words of our laws.8
D. Clemency may take a number of different forms, including pardon, amnesty,
commutation of sentence, or remission of fines. The power of clemency exists in almost
all legal systems. Modern theorists have tried to develop a principled set of rules to
distinguish appropriate uses of the power of clemency from those that erode justice. The
bounds of clemency compatible with justice are those where (1) the offender is legally or
morally innocent, (2) the offender gained no unfair advantage by the crime, (3) the action
was either morally justified or at least conscientious, or (4) the offender would suffer
excessively. The appropriate use of the clemency power is to right individual cases of
miscarriage of justice or of overly severe sentencing: to allow greater individualization in
how we treat each offender given uniform sentencing laws and fallible truth finding. 9

4
Opinion of Judge Tatting
5
Opinion if Judge Keen
6
Opinion of Judge Keen
7
Scalia, Antonin & Garner, Bryan (2012) Reading Law: The Interpretation of Legal Texts 78
8
Jefferson, Thomas (1798) Draft Kentucky Resolutions
9
Roht-Arriaza, Naomi (1995) Impunnity and Human Rights in International Law and Practice, Oxford University
Press
V. Conclusion and Prayer: This contains your summation and reliefs sought

The written law requires the conviction of these defendants for their act of killing Roger
Whetmore was murder because it was performed willfully and deliberately. The act was
performed willfully because they acted out of self-interest which is to increase the odds of their
individual survival by forcibly including Whetmore. It was deliberate because it was pondered
on and discussed for a prolonged period of time before coming to the conclusion of cannibalism.
Section 12-A of the Consolidated Statutes of Newgarth, N.C.S.A. (N.S.) § 12-A, provides:
"Whoever shall willfully take the life of another shall be punished by death." The statute permits
of no exception applicable to this case and the statute is not wanting of clarifications. The
language of the statute is plain and free from ambiguity, and express a single, definite, and
sensible meaning.

Thus we seek to have the conviction affirmed and the sentence be executed without
suspension; however, we propose that clemency be sought as strict enforcement would result in
the imposition of a clearly excessive penalty.10 The principle of executive clemency seems
admirably suited to mitigate the rigors of the law. If this is done, justice will be accomplished
without impairing either the letter or spirit of the statutes without offering any encouragement for
the disregard of law.11

10
Art 5 of The Revised Penal Code of the Philippines
11
Opinion of Judge Truepenny