Toto is not to blame

E·N·Q·U·I·R·Y
DEMAREE J.B. RAVAL

Toto is not to blame
Sunday, 09 19, 2004

Last week at the Araneta Coliseum, while screaming myself hoarse cheering for the UP Maroons, I found myself seated beside a former classmate - the beleaguered Inocencio Ferrer, Jr., as of last Thursday Undersecretary of Finance and chairman of Special Presidential Task Force 156.

Way back in UP, everyone addressed this quiet young man as, simply, Toto - which was fine by him because it drew away the usual disbelieving questions, such as, “Are you the son of SSS head Inocencio Ferrer?” Toto was never one for namedropping or vainglory. In his own fashion, he sought to be known as himself, rather than live under the shadow of his father, or be recognized as the cousin of, say, recent Magsaysay awardee Haydee Yorac.

Recently, Toto’s self-imposed anonymity has turned into a nightmare as the investigations on the tax credit certificates (TCC) scam came into the glare of public scrutiny. It appears that the onus for the failure to nail the perpetrators of the scam is now being heaped on Toto. Amid the yells and catcalls at the Coliseum, Toto told me a story, not so much as to exculpate himself but to set the record straight.

In 1999, there was an exposé at the Senate regarding a P60 billion TCC scam, committed through the illegal issuance of TCCs to companies whose applications were supported by spurious documents. [A tax credit is a refund to exporters on the local taxes that they have paid for locally purchased raw materials that formed part of the finished products that they exported]. Malacañang’s reaction was the creation of Task Force 156, which was tasked to gather evidence, endorse the filing of appropriate complaints, and assist in the prosecution of criminal cases.

Toto is the third chairman of Task Force 156. Unfortunately, in one of those bizarre cases where the hunter becomes the hunted, Toto is now taking the flak for the dismissal of the cases never handled by the task force under his watch.

Task Force 156, according to Toto, has absolutely nothing to do with the actual prosecution of the cases, this being within the province of the prosecutors from the BIR, the BOC and the Ombudsman. To a logical mind, imputing then to the task force the blame for dismissal of the cases on the ground of failure to prosecute is absurdly unfair.

Nor is it fair to impute to Toto the entire expense of P76 million from October 1999 up to August 2004. From October 1999 to January 2001, the task force spent P26.3 million for 62 cases, or P424,194 per case. From the time the task force was revived in October 2001 up to the time Toto took over in April 2002, P17.7 million was spent for 83 cases, or P213,253 per case. In contrast, the task force under Toto spent only Php33.1 million for 932 cases, or P35,515 per case, and even returned to the National Treasury savings of P491,798.37 in 2002 and P1,688,517.89 in 2003. If that’s not doing a job at the least expense to the Government, I don’t know what else it could be called. In addition, it was only during Toto’s term that lawyers of the task force were assigned to assist the prosecutors before the Sandiganbayan.

Toto is certain that the cases the task force endorsed for filing are strong and supported by documents that do not lie. The initial inclusion of some witnesses as respondents will not weaken the cases. Task Force 156, as a fact-finding body, merely has to endorse the prosecution of all those who appear to have participated in the scam. The exclusion of any respondent from prosecution rests solely on the Ombudsman.

The so-called "burning" of some witnesses in the tax credit scam is more a function of criminal procedure. All respondents have to be charged first, before one of them can be discharged to serve as state witness. The task force recommends to the Ombudsman the grant of immunity from suit, who will then determine if the testimony of the prospective state witness, who does not appear to be the “most guilty,” is indispensable to the successful prosecution of the criminal cases to be filed. That is the rule.

Which brings us to the alleged extortion try on respondent Felix Chingkoe in exchange for immunity. Toto brands this as completely false. In 2002, Toto admits, he recommended to then Ombudsman Desierto the grant of immunity, inasmuch as Chingkoe and his spouse are important witnesses. Quoting from his letter of June 13, 2002, Toto told me that "each will connect the major participants to the completion/consummation of the crimes charged." And all these happened long before the alleged extort try!

Toto says that he has neither control nor influence over the Ombudsman's decision. Under the Revised Penal Code "extortion" or direct bribery can only be committed by the public official who will be performing the act or the favor. Toto has not done either the act or the favor; he had only recommended the grant of immunity. Independently, the Ombudsman, in the course of the prosecution, may do so, even without any prodding from Toto. While current Ombudsman Marcelo may have been Toto’s former law partner, Marcelo had already inhibited himself from the cases, and delegated the evaluation of Chingkoe’s discharge as respondent to the Special Prosecutor. Which only means that Toto was never in a position to assure of a special accommodation by the Ombudsman, if at all he ever tried to extort money in return for Chingkoe’s immunity. The allegation of extortion does not wash.

Raking up his previous connections to The Firm would not bring Toto any nearer to crucifixion either. In fact, the circumstances of his early retirement from The Firm would certainly be even absolutory of Toto. But that is another story.

Discrediting Task Force 156 may very well play into the hands of those out to derail the task force's ongoing investigations. Already, a group of companies is feeling the heat generated by the investigations. To date, the task force has cast its net against 1,023 big fishes. Yet unfortunately, it is Toto who seems to have ended up in the frying pan.

I hope that out of the findings of the Senate investigations a bill designed to address the rip-off that the TCC scam spawned will be enacted into law. I am particularly interested in knowing how Congress will grapple with the ostensible arrogance of a group of companies whose P2.9 billion in TCCs was purchased by the major players in the oil industry.

I am sure Toto will leave these investigations unscathed, the media bashing that he got notwithstanding. And he will never give his friends in The Fraternity cause to come to him and say, “Et tu, Toto?”


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