At least four articles of the constitution, in addition to articles of the AFI and Lacap law, have failed to comply with the acquisition of homes for those affected by the storm.
President Nayib Bukele admits they used public funds for this the acquisition of 252 houses in Ciudad Marsella in San Juan Opico, La Libertad, for those affected by the storms, so using the money for that purpose should have the approval of the Legislative Assembly, as stipulated by the constitution and other laws, consulted lawyers say.
At least four articles of the constitution stipulate that since the money is from taxes paid by Salvadorans, it must be backed by law as it requires a reform of the general budget to transfer the funds from one institution to another.
According to the legal analysis, the process of purchasing housing would therefore violate the articles of the Organic Law on State Financial Administration (AFI) and the Law on Public Administration Acquisitions and Contracts (LACAP).
SEE: Bukele’s government gets caught up in contradictions over house handover
“And someone might say, where did they get the money for housing if the Assembly didn’t approve housing money? … We scraped pans from here, we scraped pans from here, so from the savings we made in building Hospital El Salvador, we have succeeded in this great project… ”, said Bukele last December 20 during the public ceremony for the completion of the houses.
It is clear from the President’s own words that: the government was using public funds that were intended for a particular purpose and were being used for another purpose, which is already regulated by law, what procedure is to be followed for using them; that said money was in a state wallet and they transferred it to another institution to acquire the houses; and that it processed housing contracts, in this case, by tying up money from the treasury.
Article 223 of the Magna Carta clearly states that the treasury is composed of “its funds and cash”. And Article 224 of the Constitution states that “all income from the treasury will form a single fund that will be generally affected by the needs and obligations of the state,” that is, the nation’s general fund.
To that one box they have to transfer the money that is no longer used by a public institution, as in the case of the money that, according to the president, came from the “savings” of the construction of Hospital El Salvador; To use that money, it required legal approval, through a recast of the budget, as required by Article 131 of the Constitution, which gives the Assembly the power to reform the budget, its income and expenditure of funds. lawyers consulted.
“When you saw the remnants of a project used for something like that, the remnants always disappeared… now the remnants of the projects become this. This comes from the Salvadorans’ wallets, from the Salvadoran taxes, ”Bukele noted in his speech.
Therefore, the constitution places restrictions when it comes to taxes paid by Salvadorans.
Article 234 states that “when the State is required to contract to perform works or to acquire personal property in which money or public goods are to be committed, such works or supplies must be subject to public offers, except as provided by law. determined”.
According to the Bukele government, there are 252 new homes: 78 for families from the Angelitos II community of Nejapa and 174 for families from the Nuevo Israel community of San Salvador who were hit by storms Eta and Iota this year.
Both the President and the Secretary of Housing, Michell Sol, have said, although with contradictions that they later wanted to change, that the beneficiaries will not pay anything for the houses, that is, it is a government donation. “And don’t worry about the maintenance costs, because we’re going to pay those too … they’re yours, they’re yours (the houses),” said Bukele.
In addition, the Secretary of Housing indicated that each home costs $ 25,000, which, according to that data, would add up to $ 6,300,000 in the 252 homes. Photo EDH
For her part, the housing minister declared on December 21: “Just in case: the families chose the project; the government issues the checks to be paid to the beneficiaries and delivers them to the construction company; the money comes from savings in the construction of Hospital El Salvador; no beneficiary will pay anything ”.
ALSO: “The government doesn’t buy the houses, those who buy are the beneficiaries”: Minister Sol on housing for victims
By law, the executive does not have the authority to issue checks without the corresponding budgetary changes, which must be approved by the legislative assembly, as they involve changes to the destination of the funds, say lawyers, referring to Section 43 of the AFI law, which prohibits negotiating and using public funds.
“Any holder or other official of the public sector entities and bodies subject to the rules of this Act is prohibited from negotiating, entering into commitments or signing contracts that commit public funds, temporarily or periodically. not provided for in the budget. , for the current financial year (…) Commitments entered into or contracts signed contrary to the rules of this law are void. Failure to comply with the provisions of this article will be a reason for the removal of the offenders or officials, without prejudice to the incurred criminal and civil liability ”, according to the article of the aforementioned regulations.
In addition, the Secretary of Housing indicated that each home costs $ 25,000, which, according to that data, would add up to $ 6,300,000 in the 252 homes.
But one of the most pertinent prohibitions outlined by LACAP is the prohibition contemplated in Section 153, which indicates that state institutions cannot promote or order the fragmentation of acquisitions and contracts contrary to the provisions of this law. the amount per unit would require a more rigorous procedure than distributing ”.
“Moving the budget from one ministry to another is illegal,” said the former lawmaker
Jorge Villacorta, former deputy and one of the initiators of the Organic Law on State Financial Administration (AFI) and the Law on Acquisitions and Contracts of Public Administration (LACAP), adopted in November 1995, believes that the government project De homes of 252 families hit by the storm had to bid publicly, but regrets that the laws are not being enforced.
“It should have passed a tender, if the LACAP law had been complied with, but as with the pandemic excuse, LACAP, the constitution, the laws, the Assembly, the Supreme Court, the Court of Justice have gone through the Arc de Triomphe . Accounts… ”, he says.
In the view of the former legislator, the transfer of the houses in Ciudad Marsella “should be examined by the Court of Auditors” because, while he thinks it is a good initiative, he criticizes that “it is not being done in a legal or transparent manner”.
Regarding the issuance of checks of which the Minister of Housing, Michell Sol, speaks in favor of the beneficiaries in the delivery of the houses, Villacorta points out that “the government cannot issue checks without citing the source, it must also budget No expenditure can be made with the government that is not with the budget credit, so the question is: is there a budget for that? ”.
He notes that under the Budget Law and the AFI Law, no expenditure can be incurred for which no item is budgeted, otherwise “it is illegal”.
Villacorta also points out that it is illegal to take the money from a ministry’s budget to transfer it to another state portfolio.
“If they took it from the Ministry of Health or Public Works, because it is no longer known from which ministry they got the money, and the transfer of the budget from one ministry to another, in this case to the ministry of government. Public housing is illegal; You cannot just transfer money from the budget, neither the finance minister nor the president, it has to be approved by the Legislative Assembly, ”says Villacorta.
He points out that carrying out those remittances has led to the corruption cases for which they prosecuted former presidents Elías Antonio Saca and Mauricio Funes.
The Minister of Finance, Alejandro Zelaya, assured himself on December 21 that $ 3.8 million had been used that ‘remained’ from the construction of Hospital El Salvador, a work that has not yet been completed, and that $ 1.7 million from the Ministry of Development was using Local, which has made an investment of $ 5.5 million.
The former legislator criticizes the management of public funds for believing that officials cannot use them “as it is a farm or his business”, so he hopes the Court will investigate the matter.