At least four articles of the Constitution, in addition to articles of the AFI Act and Lacap have not complied with the acquisition of housing for those affected by the storms.
President Nayib Bukele admits that they used public funds for the acquisition of 252 houses in the City of Marseille in Sant Joan Opico, La Llibertat, For those affected by the storms, so the use of money for this purpose had to have the approval of the Legislative Assembly, as established by the Constitution and other laws, point out lawyers consulted.
At least four constitutional articles state that in order to be funds from the taxes paid by Salvadorans, it had to have a legislative endorsement, because it required a reform of the general budget to transfer funds from one institution to another.
Consequently, the housing acquisition process would transgress articles of the Organic Law of State Financial Administration (AFI) and the Law of Acquisitions and Contracting of the Public Administration (LACAP), according to the analysis legal.
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“And someone will be able to say: where did they get the money for housing if the Assembly did not approve money for housing? … we scrape pots from here, we scrape pots from here, so from the savings we got in the construction of the Hospital del Salvador we managed to do this great project … “, said Bukele on December 20 during the public ceremony of handing over the houses.
From the same words of the trustee it is understood that: the government used public resources that were intended for one purpose and were used for another purpose, which is already regulated in the laws what is the procedure to continue to use them; that this money was in a state portfolio and they transferred it to another institution to purchase housing; and that it processed, in this case contracts for houses, committing money of the public treasury.
Article 223 of the Magna Carta clearly states that the Public Treasury forms “its funds and liquid values”. And Article 224 of the Constitution states that “all revenues of the Public Treasury shall form a single fund which shall be generally affected by the needs and obligations of the State,” that is, the General Fund of the Nation.
To this single box they have to transfer the funds that are no longer used by a public institution, as in the case of the money that the president says was from the “savings” of the construction of the Hospital del Salvador; in order to use this money it had to have the legislative approval, by means of a reallocation of budgetary item, as it commands it article 131 of the Constitution, which gives the power to the Assembly to reform the budget, its income and expenses background, refer the lawyers consulted.
“When it was seen that the remnants of a project were used for something like that, the remnants always disappeared … now the remnants of the projects become that. This comes out of the Salvadoran stock market, from the taxes of the Salvadorans, “Bukele remarked in his speech.
Therefore, in the case of taxes paid by Salvadorans, the Constitution sets limits.
Article 234 states that “when the State has to conclude contracts to carry out works or acquire movable property in which they have to commit funds or public goods, these works or supplies must be submitted to public tender except in certain cases. by law “.
According to the Bukele government there are 252 new homes: 78 for families in the Angelets II community of Nejapa and 174 for families in the New Israel community of San Salvador who were affected by storms Eta and Iota this year.
Both the President and the Minister of Housing, Michell Sol, have said, although with contradictions that they later wanted to amend, that the beneficiaries will not pay anything for the houses, ie it is a government donation. “And don’t worry about the maintenance fee because we’ll pay for it too … they’re yours, they’re yours (the houses),” Bukele said.
In addition, the Minister of Housing has indicated that each house has a cost of $ 25,000, which according to this figure would generate an expenditure of $ 6,300,000 in the 252 houses. photo EDH
For her part, the housing minister said on December 21: “In case of doubt: families chose the project; the government issues checks in the name of the beneficiaries and gives them to the builder; the funds they come from savings in the construction of the Hospital del Salvador; no beneficiary will pay anything. “
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According to the law, the executive does not have the power to issue checks without the corresponding budget amendments, which must be approved by the Legislative Assembly, as they are changes in the destination of the funds, say lawyers, who refer to the article 43 of the AFI law which prohibits entering into negotiations and compromising public resources.
“It is prohibited for any holder, or other official of public sector entities and institutions subject to the rules of this Law, to enter into negotiations, acquire commitments or sign contracts that commit public funds not provided for in the budget, on a temporary basis. or appellant, for the fiscal financial year in execution (…) the commitments acquired or the contracts signed in contravention of the norms of this Law are null and void.The breach of the provisions of this article will be causal for the dismissal of the offending holders or officials, without prejudice to the criminal and civil liability incurred, “says the article of the said regulations.
In addition, the Minister of Housing has indicated that each house has a cost of $ 25,000, which according to this figure would generate an expenditure of $ 6,300,000 in the 252 houses.
But one of the most relevant prohibitions pointed out by the LACAP is that provided for in Article 153, which states that state institutions may not “promote or dispose of the fragmentation of acquisitions and contracts in contravention of the provisions of this law by processing contracts that by their unitary sum they would imply a more rigorous procedure than the followed one to the fractionation “.
“Moving budget from one ministry to another is illegal,” says former lawmaker
Jorge Villacorta, former deputy and one of the promoters of the Organic Law of State Financial Administration (AFI) approved in November 1995 and the Law on Procurement and Contracting of Public Administration (LACAP), considers that the project of government to deliver housing to 252 families affected by the storms had to go through public tender, but regrets that they are not complying with the laws.
“It had to go through a tender, if the LACAP law was complied with, but as with the excuse of the pandemic, the LACAP, the Constitution, the laws, the Assembly have passed through the Arc de Triomphe. , the Supreme Court, the Court of Auditors … “, he points out.
In the opinion of the former legislator, the delivery of the houses in Marseille “should be investigated by the Court of Auditors”, since although he thinks it is a good initiative, he criticizes that “it is not done legally or transparently “.
On the issuance of checks referred to by the Minister of Housing, Michell Sol, in favor of the beneficiaries with the delivery of the houses, Villacorta points out that “the government cannot release checks without saying what the source is, in addition it must be in the budget. No expenditure can be made to the government that is not in the budget credit, so the question is, is there a budget credit for that? “
He remarks that according to the budget law and the AFI law, no expenditure can be made that does not have an item in the budget, otherwise “it is illegal”.
Villacorta also points out that if the money was taken from the budget of a ministry to move it to another state portfolio it goes against the law.
“If they have taken it from the Ministry of Health or Public Works, because it is no longer known from which ministry they took the money, and transfer budget from one ministry to another, in this case to the Ministry of Housing , without going through the Assembly is illegal; funds from the budget cannot be transferred at the whim of anyone, neither the Minister of Finance nor the President, must have authorization from the Legislative Assembly, “says Villacorta .
He points out that making these transfers of funds led to corruption cases for those who have prosecuted former presidents Elías Antonio Treu and Mauricio Funes.
The Minister of Finance, Alejandro Zelaya, said on December 21 that $ 3.8 million had been used that was “left over” from the construction of the Hospital del Salvador, a work that has not yet been completed, and that they used $ 1.7 million from the local Ministry of Development, making an investment of $ 5.5 million.
The former legislator criticizes the management of public resources, because he believes that officials can not use them “as it is a farm or his company,” so he expects the Court of Auditors to investigate this case.