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DISSENTING OPINION

PADILLA, J.:

After a careful study of the issue submitted for resolution, I am constrained, based on considerations of justice and fairness not only for the accused but for society in general as well, to register my dissent from the majority opinion.

The factual antecedents upon which this Court is called to decide whether or not to dismiss the appeal of the accused in this case, are as folows:

Accused Josefina A. Esparas was convicted on 13 March 1995 by the Regional Trial Court of Pasay City, Branch 114 in Criminal Case No. 94-5897 for violation of Rep. Act No. 6425 as amended by Rep. Act No. 7659 more specifically, for importing into the country twenty (20) kilograms of methamphetamine hydrochloride commonly known as "shabu." She was sentenced to death. Prior to conviction by the trial court, but after arraignment, accused escaped from confinement. The records of the case (Criminal Case No. 94-5897) were nonetheless elevated to this Court for automatic review, involving as it does the imposition of the death penalty.

On 14 November 1955, the Court required counsel for accused to show cause why the appeal should not be dismissed given the fact that she had escaped from confinement even prior to judgment by the trial court and remains at-large since her escape from detention.

Counsel for accused has failed to show cause, as required. Instead, he has filed motions for extension of time to file appellant's brief, which the Court has not acted upon, as there has been failure to show cause why the appeal should not be dismissed.

The Solicitor General was required by this Court to comment on the effect of accused's escape from confinement on the present appeal. The Solicitor General, in his comment dated 9 January 1996, recommends that the court proceed with the appeal and review the judgment of conviction despite the accused's escape, as the penalty involved is the death penalty.

It is basic in procedural law that one who seeks positive relief from a court of law should submit to its jurisdiction. In criminal law and procedure, it is likewise settled that the trial court has to acquire jurisdiction over the person of the accused before it can proceed to try the case and render judgment against him. Thus, in the present case, trial proceeded only as to accused Josefina A. Esparas, who earlier entered a plea of not guilty, while her co-accused Rodrigo O. Libed has remained at large and has not been arraigned or tried.

Jurisdiction over the person of the accused is also required by the Rules of Court during the pendency of an appeal from a judgment of conviction in the trial court so that, in the event of an accused's escape from detention during his appeal, the appeal may be dismissed outright by apellate court.

Section 8, Rule 124 of the Rules of Court gives the appellate court the authority to dismiss an appeal when the appellant escapes from prison or confinement or jumps bail or flees to a foreign country during the pendency of the appeal. It provides:

"Sec. 8. Dismissal of appeal for abandonment for failure to prosecute. - The appellate court may, upon motion of the appellee or on its own motion and notice to the appellant, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this Rule, except in case the appellant is represented by a counsel de oficio.

The court may also, upon motion of the appellee or on its own motion, dismiss the appeal if the appellant escapes from prison or confinement or jumps bail or flees to a foreign country during the pendency of the appeal."

In People v. Codilla (G.R. Nos. 100720-23, 30 June 1993, 224 SCRA 104), the Court reiterated the sound doctrine that the escape of the accused-appellant or his refusal to surrender to the proper authorities justifies dismissal of his appeal.

We are not unaware of the ruling gf the Court in People v. Cornelio (G.R. No. L-1289, 10 June 1971, 39 SCRA 435) stating that:

"The escape of the accused does not relieve the Court of the burden of automatically reviewing the case, in the same manner that a withdrawal of appeal by a death convict would not remove the case from jurisdiction of the Court. Hence, the court will no longer permit the case to remain further in its docket and will proceed to discharge its task of passing upon the case en consulta and reviewing the facts and the law as applied thereto by the trial court, and determining the propriety of its imposition of the death penalty." (reference to footnotes omitted)

It is my considered view however that a distinction should be made between a death convict, i.e., one sentenced to death by a trial court, who remains in the custody of the law, but who voluntarily withdraws his appeal and a death convict, i.e., one sentenced to death by the trial court but who escapes from the custody of the law during the pendency of the appeal. It should be clear in the first case, that even if the death convict withdraws his appeal from the trial court's judgment sentencing him to death, the appellate court may still and nonetheless review the judgment of conviction for the convict-appellant has atleast remained in the custody of the law to await final verdict in his case. In the second case, however, the accused no longer recognizes and respects the authority of law and the duly-constituted authorities in general and this Court in particular. Such supercilious conduct of an escapee cannot and should not be taken lightly by the Court. Respect for and recognition of the authority of the Court are essential and implicit elements in an effective and credible judicial system.

No one, it should be stressed, should be allowed to make a mockery of the justice system, in one breath, seeking its protection and even vindication via an automatic review of a death sentence and, in another breath, continuing to be a fugitive from justice and repudiating the very authority of the system whose protection he seeks and invokes.

Asoft, bended approach whereby an accused sentenced to death by a trial court for a heinous crime may escape from confinement and, still require the Supreme Court just the same to review his conviction, will shatter to pieces the present drive against heinous crimes punishable with death. All that the accused in such cases has to do - after being sentenced to death by the trial court - is to arrange for an escape since, in any case, such escape will not be taken as admission of guilt and the Supreme Court will have, in any event, to review his conviction.

If the accused, upon review by the Supreme Court, is acquitted or meted out a penalty lower than death, then he can re-surface. If his death sentence is affirmed by the Supreme Court, then he will most likely remain a fugitive from justice.

I do not believe that this is the wish or intention of the general public now outraged by the still-rising incidence of heinous crimes punishable with death. To infuse sense, nay, sanity into the system, I submit that "mandatory jurisdiction" of the Supreme Court to review death penalty cases and "automatic review" of death penalty cases have to assume implicitly that the accused in his person is subject to the processes and jurisdiction of the Supreme Court if it is to review his conviction to death by the trial court.

It is therefore my considered opinion that accused Josefina A. Esparas should be given a non-extendible period of thirty (30) days from receipt by her counsel of record of the Court's resolution to surrender to the proper authorities and remain in the custody of the law, failing in which, this appeal should be deemed and stand dismissed and, thereupon, the judgment of the trial court convicting and sentencing her to death should be final and ordered remanded to the court of origin for appropriate execution, after re-arrest of the accused.