THE restrictive guardrails set by the Supreme Court on the utilization of unprogrammed funds in the last three years on its new ruling-which the Marcos administration will appeal-can derail the implementation of some provisions of the 2026 General Appropriations Act (GAA).
This is the view of the Office of the Solicitor General (OSG) which, however, allayed concerns that the ruling will paralyze the operations of the government since it will still exempt some provisions of the national budget this year.
Solicitor General Darlene Marie B. Berberabe is set to meet with the Department of Budget and Management (DBM) next Monday to determine which programs of the Marcos administration will be affected by the ruling.
‘Our advice to the DBM and the executive branch is to adopt a ‘wait-and-see’ approach for now, especially since a decision on this [motion for reconsideration] is expected to be reached soon,’ Berberabe said in a press briefing in Malacañang on Thursday.
OSG is targeting to submit its motion for reconsideration on the Supreme Court (SC) ruling before 4 November 2026.
Unprogrammed appropriations
Under its new ruling announced Tuesday, the High Court declared unconstitutional the Special Provisions 1(a) and (b), Chapter XLIII of the 2026 GAA which authorizes unprogrammed appropriations.
Also flagged as unconstitutional were the 2024 and the 2025 GAAs, which were passed by Congress with a higher amount than the President’s proposed budget due to unprogrammed appropriations.
Programmed appropriations are items in the national budget with definite sources of funds, while unprogrammed appropriations are items, which can be funded if the government is able to secure excess revenue.
OSG pointed out that there were similar cases wherein the approved GAA was higher than the National Expenditure Program endorsed by the President in 2000, 2004, 2008, 2010, and 2022.
Exempted provisions
Berberabe said based on her initial discussion with DBM Secretary Kim Robert C. De Leon on the matter last Wednesday, several provisions of the 2026 GAA will require guidance from the SC to be utilized.
However, she noted the SC decision will not cover ongoing programs, which were started before the new ruling was released.
‘Unless it is explicitly stated that a specific [budget provision] must be stopped, then that is what should be discontinued. However, regarding other matters…which fall outside the scope of the decision, those certain activities will be implemented,’ Berberabe said.
‘So, our main concern is ensuring that the impact on the execution of projects-up until December-does not become too significant,’ she added.
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The government’s top lawyer said their motion for reconsideration will focus on the guardrail set by the Supreme Court that unprogrammed appropriations can be funded only if the government will exceed its target overall revenues.
The OSG said it contradicted the rules implemented by Congress, which allowed the release of funds for unprogrammed appropriations in case the government exceeds its target revenue collection from non-tax sources.
It maintained that it is Congress’ rules which should be followed, since it has the power of the purse allowing it to determine the form, content and manner of preparation of the budget through legislation under the Constitution.
Judicial overreach
When asked if there might be judicial overreach in the SC ruling, Berberabe answered in the affirmative and said they will include it in their motion for reconsideration.
‘In effect, the Supreme Court interpreted a provision of law within the GAA, not a constitutional provision,’ she said.
‘Regarding the OSG’s position on the case, we are simply operating within the constitutional framework-specifically, the principle of the separation of powers,’ she added.
Last Wednesday, Palace Press Officer Claire Castro stressed the importance of the Supreme Court amend its guardrails since its current version severely restricts the government from using unprogrammed appropriations in the 2027 GAA and the national budget in succeeding years.
OSG, however, noted it agrees with the other provisions of the new SC ruling particularly in prohibiting the ‘Strengthening Assistance for Government Infrastructure and Social Programs (SAGIP)’ item of the 2024 and 2025 GAA, which were removed from the national budget this year.
‘The executive branch and Congress have already anticipated many of the guardrails mentioned in the Supreme Court decision,’ Berberabe said.