The Marcos administration took another stinging slap from the Supreme Court as Solicitor General Darlene Berberabe insisted, and failed, in arguing that the use of Unprogrammed Appropriations (UA) is beyond judicial review.

In ongoing oral arguments on the constitutionality of budget manipulations under President Ferdinand Marcos Jr., Associate Justice Amy Lazaro-Javier systematically dismantled Berberabe’s position.

Javier went straight for the jugular of the Solicitor General’s central defense: that congressional wisdom in enacting the budget is a political question, and therefore untouchable by the courts.

The magistrate lectured Berberabe that wisdom has never been the sole ground for sustaining a law’s constitutionality in Supreme Court jurisprudence.

She drew the critical distinction: the Court does not supplant legislative wisdom but nullifies acts tainted with grave abuse of discretion.

The invocation of wisdom, she stressed, “is not a magic wand.” When wisdom is paid only lip service while the substance of a decision is demonstrably unwise, it ceases to be wisdom at all.

Justice Javier methodically demolished Berberabe’s depiction of the UA based on the Palace line that these are necessary standby items.

Using the Department of Budget and Management’s own website definition, which states that UAs provide “standby authority” contingent on triggers such as excess revenue collection or new foreign funding, Javier established a crucial point: that the funds do not yet exist when the GAA is enacted.

Javier exposed what she described as a paradox. Programmed appropriations are fixed and subject to constitutional ceilings, like buying at a department store where the prices are non-negotiable.

UAs have no fixed ceiling; the sky is the limit, akin to open-ended haggling in a tiangge, making unprogrammed funds conveniently exempt from constitutional limitations on amounts. This design was engineered to circumvent constitutional prohibitions, particularly the ceiling on fund use, and with it the prohibition against lump-sum, legislator-directed discretionary funds, the hallmark of the pork barrel.

In 2013, the SC declared the pork barrel system and similar budget schemes unconstitutional.

Justice Javier cited two concrete examples that revealed how the line between the programmed and unprogrammed appropriations is manipulated at will.

First, the LGUs’ share of special privilege tax collections, properly funded as programmed items in the budgets of administrations before President Ferdinand Marcos Jr.’s, was silently shifted to the UA in 2024 and 2025.

The only justification offered was the pending reconciliation of the figures with the BIR.

The bastardization of the AFP Modernization Program — a longstanding, recurring, anticipated multi-year program — also happened after Congress arbitrarily split its proposed P50 billion budget into P40 billion under the programmed and P10 billion under the Unprogrammed Appropriations.

No substantive rationale was offered. These examples demonstrated that items are not moved to the UA based on urgency, necessity, or any principled standard, but rather opportunistically, as a workaround to constitutional limits.

The unlimited, ceiling-free character of the UA, combined with the absence of principled criteria governing the items placed there, created the conditions for the pork barrel to flourish.

When budget items are arbitrarily moved into a category with no constitutional spending limits, and when Congress loses all power to intervene once funds are released, the constitutional safeguards become dead letters.

The vulnerability to corruption, Javier pressed, is not incidental to the UA framework. It is built into it.

And it is precisely this kind of discretionary abuse that the High Tribunal would likely invoke its constitutional power to strike down.