At least four articles of the Constitution, in addition to the articles of the AFI and the Lacap Law, were not met with the purchase of houses for those affected by the storms.
President Nayib Bukele admits that they used public funds for purchase of 252 houses in Ciudad Marsella from San Juan Opico, La Libertad, for those affected by storms, so the use of money for this purpose should have the approval of the Legislative Assembly, as established by the Constitution and other laws, say the lawyers consulted.
At least four constitutional articles state that, since they are tax funds paid by Salvadorans, they must have legislative support, as they require a reform of the general budget to transfer funds from one institution to another.
Consequently, the housing acquisition process would violate the articles of the Organic Law on State Financial Administration (AFI) and the Law on Public Procurement and Contracts (LACAP), according to the legal analysis.
SEE: The Bukele government is embroiled in contradictions over the delivery of houses
“And someone could say: where did they get the money for housing if the Assembly did not approve money for housing? … I scraped pans from here, I scraped pans from here, so from the savings I made in the construction of El Salvador Hospital I managed to get them this great project … ”, said Bukele on December 20 in public ceremony for handing over the houses.
From the President’s own words 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 laws which is the procedure to be followed to use them; who said the money was in a state portfolio and transferred to another institution to buy the homes; and that he processed, in this case, housing contracts, committing money from the public budget.
Article 223 of the Magna Carta clearly states that the Public Treasury is made up of “its liquid funds and securities”. And Article 224 of the Constitution states that “all revenues from the public treasury will form a single fund that will generally be affected by the needs and obligations of the state,” that is, the General Fund of the nation.
In that 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 comes from the “savings” in the construction of El Salvador Hospital; In order to use this money, it had to have legislative approval, through a reallocation of the budget allocation, according to the mandate of Article 131 of the Constitution, which gives the Assembly the power to reform its budget, revenues and expenditures. 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 them. This comes from the purse of the Salvadorans, from the Salvadoran taxes “, Bukele remarked in his speech.
Therefore, when dealing with taxes paid by Salvadorans, the Constitution sets limits.
Article 234 provides that “when the state must conclude contracts for the performance of works or the purchase of movable property in which public funds or goods are to be engaged, such works or goods must be subject to public auction except as provided by law.”
According to the Bukele government, there are 252 new homes: 78 for families in the Angelitos II community in Nejapa and 174 for families in the Nuevo Israel community in San Salvador that were affected by the Eta and Iota storms this year.
Both the president and the Minister of Housing, Michell Sol, said, although with contradictions that they later wanted to change, 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 that too … they’re yours, they’re yours (the houses),” Bukele said.
In addition, the housing minister indicated that each house has a cost of $ 25,000, which, according to these data, would generate an expense of $ 6,300,000 in the 252 houses. EDH photography
In her turn, the Minister of Housing said on December 21: “For any eventuality: the families have chosen the project; the government issues checks payable to beneficiaries and delivers them to the construction company; the funds come from savings in the construction of El Salvador Hospital; no beneficiary will pay anything ”.
AND: “Government does not buy houses, those who buy are the beneficiaries”: Minister Sol on housing for victims
According to the law, the Executive does not have the power to issue checks without the appropriate budget changes, which must be approved by the Legislative Assembly, as there are changes in the destination of funds, say lawyers, which refer to Article 43 of the AFI law prohibiting entry and employment of public resources.
“Any holder or any other official of public sector entities and institutions subject to the rules of this law is prohibited from entering into negotiations, purchasing commitments or signing contracts that commit public funds that are not provided for in the budget, temporarily or recurrently. , for the financial year in progress (…) The commitments acquired or the contracts signed in violation of the rules of this law are null and void. Failure to comply with the provisions of this article will be a reason for the removal of the owners or officials of offenders, without prejudice to the criminal and civil liability incurred, “says the article in the aforementioned regulations.
In addition, the housing minister indicated that each house has a cost of $ 25,000, which, according to these data, would generate an expense of $ 6,300,000 in the 252 houses.
But one of the most relevant prohibitions indicated by LACAP is the one provided in Article 153, which indicates that state institutions may not “promote or order the fragmentation of procurement and contracts contrary to the provisions of this law, processing contracts that by their unit value would involve a procedure more rigorous than the one followed in its division ”.
“Moving the budget from one ministry to another is illegal,” says the former legislator
Jorge Villacorta, former deputy and one of the promoters of the Organic Law on State Financial Administration (AFI) approved in November 1995 and the Law on Public Procurement and Contracts (LACAP), considers the government’s project to deliver the homes of 252 families affected by storms they had to go through a public auction, but they regret that the laws are not respected.
“It had to go through an auction, if the LACAP law is respected, but just like with the excuse of the pandemic, LACAP, the Constitution, the laws, the Assembly, the Supreme Court, the Court of Accounts …”, he says.
In the opinion of the former legislator, the handover of the houses in Ciudad Marseille “must be investigated by the Court of Auditors”, because, although he considers it a good initiative, he criticizes that “it is not done legally or transparently”.
Regarding the issuance of checks that the Minister of Housing, Michell Sol, speaks in favor of the beneficiaries with the delivery of houses, Villacorta emphasizes that “the government cannot issue checks without saying the source, it must budget. No non-government budget expenditures can be made; So the question is: is there a budget for this?
He notes that, according to the budget law and the AFI law, no expenses can be made that do not have an item established in the budget, otherwise “it is illegal”.
Villacorta also shows that if the money was taken from a ministry’s budget to transfer it to another state portfolio, they are against the law.
“If they took it from the Ministry of Health or Public Works, because it is no longer known from which ministry they received the money, and the transfer of the budget from one ministry to another, in this case to the Ministry of Housing, without going through the Assembly it is illegal; You can’t transfer funds from the budget to the end of anyone, not the minister of finance or the president, you have to have the authorization from the Legislative Assembly “, says Villacorta.
He points out that these transfers of funds have led to corruption cases for which former presidents Elías Antonio Saca and Mauricio Funes have been prosecuted.
Finance Minister Alejandro Zelaya said on December 21 that $ 3.8 million had been used for “remaining” from the construction of El Salvador Hospital, a work that has not yet been completed and that 1.7 million dollars from the Ministry of Development. Locally, which made an investment of $ 5.5 million.
The former legislator criticizes the management of public resources because he believes that officials cannot use them “because it is a farm or his company”, so he hopes that the Court of Accounts will investigate this case.