Published 15 December 2025, The Daily Tribune
The Constitution does not tolerate shortcuts—especially in matters of public finance. Every peso spent by government must trace its authority to the Constitution, to legislative deliberation, and to a clearly identified source of funds. When these safeguards are relaxed in the name of convenience, the result is not flexibility but constitutional erosion.
The recent Supreme Court ruling on the transfer of PhilHealth funds once again placed this tension to the fore. While the Court invalidated the diversion of PhilHealth’s reserves, it declined to confront a deeper and recurring infirmity in our budgetary system: the continued inclusion of unprogrammed appropriations. On this point, Justice Ramon Paul L. Hernando’s Separate Concurring and Dissenting Opinion stands apart—not for its rhetoric, but its sheer logic and fealty to constitutional design.
Justice Hernando’s position is direct and uncompromising. Unprogrammed appropriations, he argues, are unconstitutional in any form. A General Appropriations Act is constitutionally defined as a “budget of expenditures and sources of financing.” An appropriation without a definite source of funds is therefore a contradiction. It authorizes spending without the constitutional assurance that money exists—or will exist—when the obligation is incurred.
This critique is not novel, but it has long been ignored. Since their introduction in the late 1980s, unprogrammed appropriations have survived not because they are constitutionally sound, but because they are administratively convenient. They allow government to list projects that may or may not be funded later, depending on excess revenues, loans, or reallocations. In doing so, they blur the line between legislative authorization and fiscal reality.
Justice Hernando reminds us that convenience is never a constitutional value. The framers deliberately rejected open-ended appropriations to prevent deficit spending and unchecked discretion. If funds become available after the budget is enacted, the Constitution provides a remedy: a supplemental or special appropriations bill, supported by certified sources of financing and subjected to fresh legislative scrutiny.
The PhilHealth controversy illustrates the danger with clarity. Unprogrammed appropriations became the justification for tapping health insurance reserves—funds expressly protected by statute and by the Constitution—to finance unrelated projects. What should have been a sacred commitment to the right to health was weakened by a budgetary device that compromises constitutional guarantees.
More troubling is the structural distortion this practice introduces. By authorizing expenditures without funding, Congress effectively transfers to the Executive the power to determine when and how an appropriation becomes real. That discretion, Justice Hernando warns, is precisely what the power of the purse was designed to restrain.
History supports this view. Legislative debates as early as the 1989 budget already questioned the wisdom of unprogrammed funds, describing them as illusory and prone to abuse. What began as an exceptional measure has quietly become routine. Familiarity, however, does not equate with, nor confer, constitutionality.
The Court has not yet adopted Justice Hernando’s position as doctrine. But constitutional law often evolves this way. Today’s concurrences and dissents frequently become tomorrow’s rules, especially when they adhere more closely to text, structure, and history than prevailing compromises.
That Justice Hernando’s concurrence resonated beyond the Court is telling. It was carried by all major dailies—not as political commentary, but as constitutional reasoning that spoke plainly to lawyers, legislators, and citizens alike. Such attention is rare for a separate opinion. It suggests that the argument touched something fundamental.
In time, the logic may prove difficult to resist. A budget that authorizes only what can actually be funded is not rigid—it is honest. It restores transparency, reinforces accountability, and promotes deeper respect to the Constitution’s design.
Justice Hernando’s concurrence is not yet the rule. But it has marked the path. And when the Court eventually looks for firmer constitutional ground, it may discover that the answer has been there all along—quietly, patiently, and persuasively waiting to be adopted.
For more of Dean Nilo Divina’s legal tidbits, please visit www.divinalaw.com. For comments and questions, please send an email to cad@divinalaw.com.
