The Fifth Division of the Sandiganbayan has denied the consolidation of the graft and non-bailable malversation of public funds cases filed against resigned congressman Zaldy Co and officials of the Department of Public Works and Highways (DPWH) in Oriental Mindoro.

The graft case is with the anti-graft court’s Fifth Division, while the malversation charges are with the Sixth Division in the P289.5 million “anomalous” flood control project in Naujan town.

Last Nov. 27, the consolidation of the two cases sought by Ombudsman prosecutors was granted by the Sixth Division to "promote the speedy disposition of cases."

However, the Fifth Division – in a resolution issued last Dec. 10 – did not agree with the consolidation because the malversation case involving P215,331,394.47 is "well beyond the maximum threshold amount and carries an imposable penalty of reclusion perpetua where bail is no longer a matter of right."

It said the consolidation of the cases will only change the settings for the marking and pre-trial, and will unnecessarily derail the bail proceedings.

Should the Fifth Division proceed to conduct the required bail hearing, it said that both prosecution and defense must be accorded sufficient opportunity to present their evidence and this will only cause delays, it also said.

The Fifth Division said: "The principal matter to be resolved is the accused's entitlement to bail by a judicial determination of the strength of evidence against them. Indeed, the burden imposed on the prosecution is only to establish strong evidence of guilt and concomitantly, the accused need only prove that the prosecution's evidence does not meet this threshold to be entitled to bail."

It also said: "Thus, while this court may concede, and as the prosecution so claims, that indeed, there may be identical parties, commonality of the lineage of the offenses, and perhaps even the evidence to be presented, there is a fundamental difference in the preliminary issues to be resolved, specifically the differing burden of proof in a bail hearing."

The 13-page resolution was written by Fifth Division Chairperson and Associate Justice Zaldy V. Trespeses with the concurrence of Associate Justices Maryann E. Corpus-Manalac and Gener M. Gito.

Aside from the two cases, Co is also facing a separate graft case before the court’s Seventh Division.

Nine accused have already pleaded "not guilty" to the charges before the Fifth and Sixth Divisions. They are Department of Public Works and Highways (DPWH) Region IV-B Regional Director Gerald A. Pacanan, Assistant Regional Director Gene Ryan A. Altea, Assistant Regional Director Ruben D. Santos, Jr., Construction Division Chief Dominic G. Serrano, Project Engineer III Felisardo S. Casuno, Accountant IV Lerma D. Cayco, Maintenance Division Head Juliet Calvo, officer-in-charge Chief of Quality Assurance and Hydrology Division Dennis Pelo Abagon, and Planning and Design Division officer-in-charge Montrexis Tamayo.

Since the malversation charges recommended no bail, the female accused were brought to Camp Karingal in Quezon City while the male accused went to the Payatas new jail facility.

Co remains at large and has not return to the country. Materials Engineer Timojen Adiong Sacar, as well as Sunwest Construction and Development Corporation President Aderma Angelie D. Alcazar, Treasurer Cesar X. Buenaventura, and board of directors members Consuelo Dayto Aldon, Engineer Noel Yao Cao, and Anthony L. Ngo, all remain at large.

The Sandiganbayan has ordered the cancellation of the passports of Co, Alcazar, Buenaventura and Cao and has declared them as fugitives from justice.