Executive Decree PCM-09-2023 by which the rescission and liquidation of the Trust Contract for the Administration of Funds of the International Scholarship of the Presidential Scholarship Program Honduras 20/20 is ordered

This decree orders the liquidation of the trust fund for the Honduras 20/20 Scholarship Program and the transfer of all its funds (cash, investments, and earnings) to the General Treasury so the State can directly control these resources according to the national budget. It also cancels the previous program and creates a new Solidarity Scholarships program administered by the Social Development Secretariat.

Whereas, in accordance with the Constitution of the Republic, the Constitutional President is responsible for the administration of public finances; the general administration of the State; the direction of the economic policy and financial policy of the State, its representation and the issuance of extraordinary measures in economic and financial matters when the national interest so requires, and must report to the National Congress (article 245, numerals 2, 19, 20 and 30).

Whereas, in accordance with the General Law of Public Administration, the President of the Republic is responsible for the supreme direction and coordination of the Centralized and Decentralized Public Administration, and may, in the exercise of her functions, act alone or in Council of Ministers. Likewise, it is established that acts shall be issued by decree that, in accordance with the Constitution of the Republic, secondary laws or regulations, are exclusively of the President of the Republic or must be issued in Council of State Secretaries (articles 11 and 117).

Whereas, in accordance with the Constitution of the Republic, the administration of public funds corresponds to the Executive Branch. For the collection, custody and expenditure of said funds, there shall be a general treasury service. The Executive Branch, however, may delegate to the Central Bank the functions of collector and depositary. Also, the law may establish special payment services. Likewise, it establishes that all ordinary tax revenues shall constitute a single fund (articles 355 and 363).

Whereas the General Law of Public Administration establishes as fundamental competencies of the State Secretariat in the Office of Finance (SEFIN), that which pertains to the formulation, coordination, execution and evaluation of policies related to Public Finances; the execution of the General Budget of Income and Expenditures of the Republic; matters relating to credit and public debt, the management of the Treasury and the Paymaster's Office of the Republic, the registration, administration, protection and control of national assets and the programming of public investment, within the framework of priorities established by the Presidency of the Republic (article 29).

Whereas the Organic Budget Law, contained in Decree No. 83-2004, published in the Official Gazette "La Gaceta" on June 21, 2004, edition number 30,421, establishes that "The Treasury subsystem shall have the purpose of administering financial resources, including their collection and management, as well as their subsequent distribution and control to attend to the payment of financial obligations, in order to fulfill the programmed objectives. The functions inherent to this subsystem correspond to the General Treasury of the Republic, which is responsible for issuing the necessary regulations for those Entities that, empowered by Law, collect income directly. The General Treasury of the Republic shall also be responsible for providing the necessary funds to make payments in a timely and proper manner. For this purpose, it shall operate on the basis of collections that enter the Single Treasury Account System (CUT) opened at the Central Bank of Honduras, and the allocation of payment quotas, scheduled periodically for the purposes of the expenditures that correspond, in accordance with what was approved in the General Budget of Income and Expenditures of the Republic..." (article 83).

Whereas in accordance with the Constitution of the Republic, fiscal or patrimonial assets may only be awarded or disposed of to persons and in the form and conditions determined by law and in accordance with the provisions of the Commercial Code (article 354). In this sense, the Commercial Code establishes that a trust is a legal transaction by virtue of which the fiduciary bank is granted title over certain assets, with the mandatory limitation of performing only those acts required for the fulfillment of the illicit and determined purpose to which they are destined: it implies the cession of rights or the transfer of ownership of assets in favor of the fiduciary and, before third parties, the fiduciary (bank) shall be considered the owner of the rights or fiduciary assets (articles 1,033 to 1,062); sufficient reason to maintain that national assets cannot be granted under trust contracts under any justification.

Whereas according to the Commercial Code, it regulates merchants, acts of commerce and commercial things. Without prejudice to other laws on the matter, commercial customs and uses and, in the absence of these, the rules of the Civil Code (article 1).

Whereas according to the Constitution of the Republic, no commitment may be made nor any payment effected outside the appropriations voted in the budget, or in contravention of budget regulations. Violators shall be liable civilly, criminally and administratively (article 364). However, hundreds of thousands of millions of lempiras are deposited in public and private banks, under trust contracts that are administered by committees of diverse composition and nature, their operations are not recorded in the Budget of the Republic, they independently decide their investment plans, make loans that are also not recorded by SEFIN and invest even in government bonds, without the State itself being able to use those resources to meet its pressing needs, including debt payment obligations.

Whereas the creation of trusts with public funds administered by committees composed of members from the public sector, private sector and civil society has seriously weakened the Single Treasury Account, reducing the transparency with which public funds must be administered, for which reason it is necessary to end this form of administration.

Whereas only in the year 2019, by Executive Decree number PCM 029-2019, published in the Official Gazette La Gaceta on November 23, 2019, the General Directorate of Trusts was created, attached to the Sub-Secretariat of Finance and Budget of the State Secretariat in the Office of Finance (SEFIN), responsible for participating in the creation or structuring of trusts, control and monitoring of their execution, providing technical support to the Technical Committees and participating at the appropriate time in the liquidation of all public trusts existing and in force in the Republic; as well as those that are to be established or may be established in the future, and also to keep control and monitoring of the registration of each of the Trusts.

Whereas by Executive Decree number PCM 013-2017, published in the Official Gazette "La Gaceta" on February 4, 2017, in edition 34,287, the Presidential Scholarship Program "HONDURAS 20/20" was created, establishing that it would be executed through the Educational Credit Institute (EDUCRÉDITO). Likewise, it was determined that the State Secretariat in the Office of Finance (SEFIN) would allocate the necessary resources from the Fund of the Trust "Fund of Solidarity and Social Protection for the Reduction of Extreme Poverty".

Whereas in the year 2020, the funds of the INTERNATIONAL SCHOLARSHIP OF THE PRESIDENTIAL SCHOLARSHIP PROGRAM HONDURAS 20/20 were established as a trust, with COALIANZA and EDUCRÉDITO as settlors; EDUCRÉDITO as beneficiary and BANCO FICOHSA as fiduciary.

Whereas the funds of the INTERNATIONAL SCHOLARSHIP OF THE PRESIDENTIAL SCHOLARSHIP PROGRAM HONDURAS 20/20 were established as a TRUST through the TRUST CONTRACT TO ADMINISTER FUNDS OF THE INTERNATIONAL SCHOLARSHIP OF THE PRESIDENTIAL SCHOLARSHIP PROGRAM HONDURAS 20/20 executed between the Commission for the Promotion of Public-Private Partnership (COALIANZA) as settlor and Banco Financiera Comercial Hondureña, S.A (FICOHSA) as fiduciary. Subsequently, by Executive Decree number PCM 098-2020 published in the Official Gazette "La Gaceta" on October 9, 2020, edition number 35,395, the State Secretariat in the Office of the Presidency was authorized to proceed to subrogate itself in the aforementioned Trust Contract, after the Commission for the Promotion of Public-Private Partnership (COALIANZA) was suppressed and liquidated by Executive Decree number PCM 064-2019 of November 15, 2019, published in the Official Gazette "La Gaceta" in edition No. 35,126.

Whereas in accordance with the provisions of article 321 of the Constitution of the Republic, State officials have no more powers than those expressly conferred on them by law. Any act executed outside the law is null and void and implies liability.