OSG seeks hold on use of 2026 appropriations

MANILA, Philippines — Government lawyers have advised the Marcos administration to put on hold the implementation of some programs in this year’s national budget as they prepare to appeal a Supreme Court ruling declaring the 2024 and 2025 outlays and parts of the 2026 budget unconstitutional.

Solicitor General Darlene Marie Berberabe said the government wants to clarify some aspects of the high court ruling, specifically the guardrails prescribed for the exercise of budgetary powers, as these could affect the execution of projects.

She noted that the ruling bars the executive branch from touching Special Provisions 1-a and 1-b of Chapter XLII of the 2026 budget, which pertains to the release of unprogrammed appropriations.

According to the Supreme Court, the provisions are unconstitutional since the budgetary ceiling imposed under the Constitution applies to the total of both programmed and unprogrammed appropriations. The Constitution states that Congress may not increase the total appropriations recommended by the President.

“Our advice to the DBM (Department of Budget and Management) and the executive branch is to withhold for now (the implementation of some programs in the 2026 budget) since we expect it to be decided upon immediately,” Berberabe told a media briefing yesterday at Malacañang.

“Our Supreme Court will surely prioritize this because the Supreme Court does not want the execution of the
 budget to be affected,” she added.

However, the solicitor general believes that the projects in the 2026 budget covered by the high court ruling but whose implementation started before it was issued should continue.

Berberabe said she is scheduled to meet with Budget Secretary Kim Robert de Leon on Monday to discuss the programs to be affected by the court decision.

At a Senate hearing yesterday, De Leon said no releases have been charged against special provisions of the unprogrammed appropriations (UA) in the 2026 national budget.

“The releases from the 2026 UAs are only for FAPs (foreign assisted projects),” De Leon said.

He assured lawmakers that the department is prepared to work closely with Congress in reviewing and refining the relevant budget provisions, while coordinating with the Office of the Solicitor General (OSG) on legal questions arising from the SC decision.

“We commit to work with the Senate and Congress to fine-tune the special provision for unprogrammed appropriations,” he said.

Deadline for appeal

The OSG has until Nov. 4 to appeal the ruling, according to Berberabe.

“The implication is the 2026 budget will be affected. But we believe it will be seen once it is reassessed. We will appeal and explain the effect. We understand the guardrails, in fact, there is no issue there... We will show why no constitutional requirement or standard was violated,” Berberabe said.

While acknowledging that safeguards are essential to ensure transparency, accountability and fiscal discipline in the use of public funds, the OSG said there is a “complex challenge” in distinguishing safeguards required by the Constitution from those whose formulation falls within the powers of Congress and the executive.

Asked whether there was a possible overreach in the Supreme Court’s decision, Berberabe replied: “That is one of the things we are looking at.”

“The OSG believes that the Constitution bestowed powers – power of the purse is for Congress; the power to prepare the budget and to propose to Congress, that’s for the executive. After the passage of the GAA (General Appropriations Act), the executive handles the execution of the budget,” she added.

According to Berberabe, it was not the first time the budget passed by Congress was higher than the figure in the National Expenditure Program (NEP) proposed by the President.

She said it also happened in 2000 during the administration of Joseph Estrada, in 2004, 2008 and in 2010 during the presidency of Gloria Macapagal-Arroyo and in 2022 during the leadership of Rodrigo Duterte.

Valid tool

Former Senate president Franklin Drilon, meanwhile, lauded the SC’s recognition of unprogrammed appropriations as a valid budgetary tool, but urged Congress to seek clarification on portions of the decision that may encroach on its constitutional authority over budgeting.

Based on his reading of the decision, Drilon said the SC affirmed that unprogrammed appropriations are not unconstitutional per se, as they provide standby spending authority that may be exercised only when funding conditions prescribed by law are met.

He said seeking clarification is appropriate because the ruling, as currently written, may go beyond constitutional review by prescribing fiscal conditions that, under the 1987 Constitution, should be left to the best judgment of Congress. Drilon said the ruling affects Congress’ authority to determine appropriations.

Drilon also said the SC ruling comes at a crucial stage in the preparation of the 2027 national budget. “We look forward to seeing how the reforms will be reflected in the 2027 budget,” he said.

As amicus curiae during the proceedings, Drilon acknowledged that flaws or abuses in the use of unprogrammed appropriations may require correction. But the standards needed to address them should be expressly imposed by Congress through legislation, with the court determining whether those standards comply with the Constitution.

“Congress determines appropriations and their lawful conditions. The executive implements the budget within those conditions. Both functions remain subject to the Constitution,” Drilon said.

Replacing the funding trigger enacted by Congress, he warned, could narrow legislative discretion and restrict the executive’s ability to implement the budget under the approved framework.

“The concern therefore extends beyond one administration or one budget. It involves the scope of the budget powers available to future Congresses and presidents,” he said.-  Aubrey Rose Inosante