EN BANC

[G.R. No. 177130. June 7, 2011.]

HON. EDUARDO ERMITA in his official capacity as THE EXECUTIVE SECRETARY, petitioner,
vs. HON. JENNY LIND R. ALDECOA-DELORINO, Presiding Judge, Branch 137, Regional
Trial Court, Makati City, ASSOCIATION OF PETROCHEMICAL MANUFACTURERS OF THE
PHILIPPINES, representing JG Summit Petrochemical Corporation, et al., respondents.
DECISION
CARPIO MORALES, J p:
Then Executive Secretary petitioner Eduardo Ermita assailed via certiorari the writ of
preliminary injunction granted by public respondent Judge Jenny Lind R. Aldecoa Delorino,
then Presiding Judge of the Regional Trial Court of Makati City, Branch 137, by Omnibus
Order 1 dated February 6, 2007 in favor of private respondent Association of Petrochemical
Manufacturers of the Philippines (APMP or private respondent) denying petitioner's Motion to
Dismiss and enjoining the government from implementing Executive Order No. 486.
CAHTIS
Executive Order No. 486 (E.O. 486) issued on January 12, 2006 by then President Gloria
Macapagal-Arroyo reads:
LIFTING THE SUSPENSION OF THE APPLICATION OF THE TARIFF REDUCTION SCHEDULE ON
PETROCHEMICALS AND CERTAIN PLASTIC PRODUCTS UNDER THE COMMON EFFECTIVE
PREFERENTIAL TARIFF (CEPT) SCHEME FOR THE ASEAN FREE TRADE AREA (AFTA)
WHEREAS, Executive Order 234 dated 27 April 2000, which implemented the 2000-2003
Philippine schedule of tariff reduction of products transferred from the Temporary Exclusion
List and the Sensitive List to the Inclusion List of the accelerated CEPT Scheme for the AFTA,
provided that the CEPT rates on petrochemicals and certain plastic products will be reduced
to 5% on 01 January 2003;
WHEREAS, Executive Order 161 issued on 9 January 2003 provides for the suspension of the
application of the tariff reduction schedule on petrochemicals and certain products in 2003
and 2004 only;
WHEREAS, the government recognizes the need to provide an enabling environment for the
naphtha cracker plant to attain international competitiveness;
WHEREAS, the NEDA Board approved the lifting of the suspension of the aforesaid tariff
reduction schedule on petrochemicals and certain plastic products and the reversion of the
CEPT rates on these products to EO 161 (s. 2003) levels once the naphtha cracker plant is in
commercial operation;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the
Philippines, pursuant to the powers vested in me under Section 402 of the Tariff and
Customs Code of 1978 (Presidential Decree No. 1464), as amended, do hereby order:
SECTION 1.
The articles specifically listed in Annex "A" (Articles Granted Concession under
the CEPT Scheme for the AFTA) hereof, as classified under Section 104 of the Tariff and
Customs Code of 1978, as amended, shall be subject to the ASEAN CEPT rates in accordance
with the schedule indicated in Column 4 of Annex "A". The ASEAN CEPT rates so indicated
shall be accorded to imports coming from ASEAN Member States applying CEPT concession
to the same product pursuant to Article 4 of the CEPT Agreement and Its Interpretative
Notes. HDcaAI

SECTION 2.
In the event that any subsequent change is made in the basic (MFN) Philippine
rate of duty on any of the article listed in Annex "A" to a rate lower than the rate prescribed
in Column 4 of Annex "A", such article shall automatically be accorded the corresponding
reduced duty.
SECTION 3.
From the date of effectivity of this Executive Order, all articles listed in Annex
"A" entered into or withdrawn from warehouses in the Philippines for consumption shall be
imposed the rates of duty therein prescribed subject to qualification under the Rules of
Origin as provided for in the Agreement on the CEPT Scheme for the AFTA signed on 28
January 1992.
SECTION 4.
The Department of Trade and Industry, in coordination with National Economic
and Development Authority, the Department of Finance, the Tariff Commission and the
Bureau of Customs, shall promulgate the implementing rules and regulations that will govern
the reversion of the CEPT rates on petrochemicals and plastic products to EO 161 (s. 2003)
levels once the naphtha cracker plant is in commercial operation.
SECTION 5.
All presidential issuances, administrative rules and regulations, or parts
thereof, which are contrary to or inconsistent with this Executive Order are hereby revoked
or modified accordingly.
SECTION 6.
This Executive Order shall take effect immediately following its complete
publication in two (2) newspapers of general circulation in the Philippines.
Done in the City of Manila, this 12th day of January in the year of Our Lord Two Thousand
and Six. (emphasis supplied)
The above issuance in effect reduces protective tariff rates from 10% to 5% on the entry of
inexpensive products, particularly plastic food packaging, from ASEAN Free Trade (AFTA)
member countries into the Philippines.
APMP, an organization composed of manufacturers of petrochemical and resin products,
opposed the implementation of E.O. 486. Contending that the E.O. would affect local
manufacturers, it filed a petition before the RTC of Makati, docketed as Civil Case No. 062004, seeking the declaration of its unconstitutionality for being violative of Sec. 4 of
Republic Act No. 6647 which prohibits the President from increasing or reducing taxes while
Congress is in session 2 and Sec. 402 (e) 3 of the Tariff and Customs Code. It thereupon
prayed for the issuance of a writ of preliminary injunction to enjoin its implementation.
STaIHc
Petitioner contends that public respondent gravely abused her discretion in assuming
jurisdiction over the petition for prohibition and granting the writ of preliminary injunction as
the exercise of the quasi-legislative functions of the President cannot be enjoined. He avers
that writs of prohibition lie only against those persons exercising judicial, quasi-judicial or
ministerial functions.
By granting injunctive relief, petitioner contends that public respondent effectively
preempted the trial of and pre-judged the case, given that what private respondent seeks is
to stop the implementation of E.O. 486. Further, petitioner contends that the grant of
injunctive relief was not supported by fact and law, for what APMP sought to be protected
was "future economic benefits" which may be affected by the implementation of the E.O.
benefits which its members have no right to since protective tariff rates are government
privileges wherein no one can claim any vested right to.
On the merits, petitioner maintains that E.O. 486 is not constitutionally infirm, it having been
issued under the authority of Secs. 401 and 402 of the Tariff and Customs Code which set no

limitations on the President's power to adjust tariff rate and serve as the government's
response to its AFTA commitment on Common Effective Preferential Tariff (CEPT).
Since it is only the Omnibus Order denying the Motion to Dismiss and granting a writ of
preliminary injunction that is being assailed, the Court will not pass on the constitutionality
of E.O. 486 which is still pending before the trial court.
Private respondent prays in its Comment for the denial of the present petition, alleging that,
among other things, the petition is premature as petitioner failed to file a Motion for
Reconsideration of the assailed Omnibus Order of public respondent, and maintaining the
propriety of the remedy of prohibition which it filed to assail the E.O.
The issues then are:
1.
Whether public respondent erred in assuming jurisdiction over the petition for
prohibition and not granting petitioner's motion to dismiss the petition; cCESTA
2.

Whether a motion for reconsideration should have been filed by petitioner; and

3.
Whether public respondent erred in granting the writ of preliminary injunction in favor
of APMP.
On the issue of jurisdiction
Rule 65, Sec. 2 of the Rules of Court provides:
Sec. 2. Petition for Prohibition. When the proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are
without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as law and justice may
require. (emphasis supplied)
Holy Spirit Homeowners' Association v. Defensor 4 expounds on prohibition as a remedy to
assail executive issuances:
A petition for prohibition is also not the proper remedy to assail an IRR issued in the exercise
of a quasi-legislative function. Prohibition is an extraordinary writ directed against any
tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or
ministerial functions, ordering said entity or person to desist from further proceedings when
said proceedings are without or in excess of said entity's or person's jurisdiction, or are
accompanied with grave abuse of discretion, and there is no appeal or any other plain,
speedy and adequate remedy in the ordinary course of law. Prohibition lies against judicial or
ministerial functions, but not against legislative or quasi-legislative functions. Generally, the
purpose of a writ of prohibition is to keep a lower court within the limits of its jurisdiction in
order to maintain the administration of justice in orderly channels. Prohibition is the proper
remedy to afford relief against usurpation of jurisdiction or power by an inferior court, or
when, in the exercise of jurisdiction in handling matters clearly within its cognizance the
inferior court transgresses the bounds prescribed to it by the law, or where there is no
adequate remedy available in the ordinary course of law by which such relief can be
obtained. Where the principal relief sought is to invalidate an IRR, petitioners' remedy is an
ordinary action for its nullification, an action which properly falls under the jurisdiction of the
Regional Trial Court. In any case, petitioners' allegation that "respondents are performing or
threatening to perform functions without or in excess of their jurisdiction" may appropriately

be enjoined by the trial court through a writ of injunction or a temporary restraining order.
(emphasis supplied) ESTDcC
Be that as it may, it is settled that what determines the nature of the action and which court
has jurisdiction over it are the allegations in the complaint and the character of the relief
sought. 5 A perusal of the petition of APMP before the trial court readily shows that it is not a
mere petition for prohibition with application for the issuance of a writ of preliminary
injunction. For it is also one for certiorari as it specifically alleges that E.O. 486 is invalid for
being unconstitutional, it having been issued in contravention of Sec. 4 of R.A. 6647 and Sec.
402 (e) of the Tariff and Customs Code, hence, its enforcement should be enjoined and
petitioner prohibited from implementing the same.
Petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues
and to review and/or prohibit or nullify, when proper, acts of legislative and executive
officials. 6 Thus, even if the petition was denominated as one for prohibition, public
respondent did not err in treating it also as one for certiorari and taking cognizance of the
controversy.
On the propriety of filing a motion
for reconsideration
Ordinarily, certiorari as a special civil action will not lie unless a motion for reconsideration is
first filed before the respondent tribunal, to allow it an opportunity to correct its assigned
errors. 7 This rule, however, is not without exceptions.
The rule is, however, circumscribed by well-defined exceptions, such as (a) where the order
is a patent nullity, as where the court a quo had no jurisdiction; (b) where the questions
raised in the certiorari proceeding have been duly raised and passed upon by the lower
court, or are the same as those raised and passed upon in the lower court; (c) where there is
an urgent necessity for the resolution of the question and any further delay would prejudice
the interests of the Government or of the petitioner or the subject matter of the action is
perishable; (d) where, under the circumstances, a motion for reconsideration would be
useless; (e) where petitioner was deprived of due process and there is extreme urgency for
relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the granting of
such relief by the trial court is improbable; (g) where the proceedings in the lower court are
a nullity for lack of due process; (h) where the proceedings were ex parte, or in which the
petitioner had no opportunity to object; and (i) where the issue raised is one purely of law or
where public interest is involved. 8 (emphasis supplied) CAaDTH
The present case involves the constitutionality and implementation of an executive issuance
involving tariff rates and, as alleged by petitioner, the Government's commitments under
the AFTA. Clearly, the filing of a motion for reconsideration may be dispensed with following
exceptions (c ) and (i) in the above enumeration in Siok Ping Tang.
On the grant of the writ of
preliminary injunction
APMP alleges that it is composed of manufacturers of petrochemical products and that the
implementation of the assailed E.O. reducing tariff rates on certain petroleum-based
products will result in the local market being flooded with lower-priced imported goods which
will, consequently, adversely affect their sales profits. In granting the assailed writ, public
respondent held that, based on the initial evidence presented, the APMP stands to lose
"substantial revenues" and some of its members "may eventually have to close up or stop
ongoing works on their Naphtha Cracker plants" if E.O. 486 is implemented. Public
respondent thus ruled that the APMP was entitled to the writ as it has a "valuable stake in

the petrochemical industry" and the enforcement of E.O. 486 will adversely affect its
members; and that petitioner violated APMP's right on the strength of an invalid executive
issuance.
Public respondent noted that the Southern Cross case cited by petitioner which ruled that no
court is allowed to grant injunction to restrain the collection of taxes is inapplicable in the
present case, since restraining the implementation of E.O. 486 will not deprive the
Government of revenues; instead, it will result in more revenues as the proposed reduction
of rates will be enjoined.
Public respondent thus concluded that there is sufficient basis for the issuance of a writ of
preliminary injunction in favor of APMP.
It is well to emphasize that the grant or denial of a writ of preliminary injunction in a pending
case rests on the sound discretion of the court taking cognizance thereof. 9 In the present
case, however, where it is the Government which is being enjoined from implementing an
issuance which enjoys the presumption of validity, such discretion must be exercised with
utmost caution. Executive Secretary v. Court of Appeals, 10 enlightens: cDAITS
In Social Security Commission v. Judge Bayona, we ruled that a law is presumed
constitutional until otherwise declared by judicial interpretation. The suspension of the
operation of the law is a matter of extreme delicacy because it is an interference with the
official acts not only of the duly elected representatives of the people but also of the highest
magistrate of the land.
In Younger v. Harris, Jr., the Supreme Court of the United States emphasized, thus:
Federal injunctions against state criminal statutes, either in their entirety or with respect to
their separate and distinct prohibitions, are not to be granted as a matter of course, even if
such statutes are unconstitutional. No citizen or member of the community is immune from
prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution
even though alleged to be unauthorized and, hence, unlawful is not alone ground for relief in
equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff
who seeks its aid. 752 Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45, 49, 61 S.Ct. 418,
420, 85 L.Ed. 577.
And similarly, in Douglas, supra, we made clear, after reaffirming this rule, that:
"It does not appear from the record that petitioners have been threatened with any injury
other than that incidental to every criminal proceeding brought lawfully and in good
faith . . ." 319 U.S., at 164, 63 S.Ct., at 881.
The possible unconstitutionality of a statute, on its face, does not of itself justify an
injunction against good faith attempts to enforce it, unless there is a showing of bad faith,
harassment, or any other unusual circumstance that would call for equitable relief. The "on
its face" invalidation of statutes has been described as "manifestly strong medicine," to be
employed "sparingly and only as a last resort," and is generally disfavored.
To be entitled to a preliminary injunction to enjoin the enforcement of a law assailed to be
unconstitutional, the party must establish that it will suffer irreparable harm in the absence
of injunctive relief and must demonstrate that it is likely to succeed on the merits, or that
there are sufficiently serious questions going to the merits and the balance of hardships tips
decidedly in its favor. The higher standard reflects judicial deference toward "legislation or
regulations developed through presumptively reasoned democratic processes." Moreover, an
injunction will alter, rather than maintain, the status quo, or will provide the movant with
substantially all the relief sought and that relief cannot be undone even if the defendant
prevails at a trial on the merits. Considering that injunction is an exercise of equitable relief

and authority, in assessing whether to issue a preliminary injunction, the courts must
sensitively assess all the equities of the situation, including the public interest. In litigations
between governmental and private parties, courts go much further both to give and
withhold relief in furtherance of public interest than they are accustomed to go when only
private interests are involved. Before the plaintiff may be entitled to injunction against future
enforcement, he is burdened to show some substantial hardship. (emphasis supplied)
ESTDIA
Indeed, a writ of preliminary injunction is issued precisely to prevent threatened or
continuous irremediable injury to some of the parties before their claims can be thoroughly
studied or adjudicated to preserve the status quo until the merits of the case can be
heard fully. Still, even if it is a temporary and ancillary remedy, its issuance should not be
trifled with, and an applicant must convincingly show its entitlement to the relief. St. James
College of Paraaque v. Equitable PCI Bank, 11 explains:
Under Section 3, Rule 58 of the Rules of Court, an application for a writ of preliminary
injunction may be granted if the following grounds are established, thus:
(a)
That the applicant is entitled to the relief demanded, and the whole or part of such
relief consists in restraining the commission or continuance of the act or acts complained of,
or in requiring the performance of an act or acts, either for a limited period or perpetually;
(b)
That the commission, continuance or non-performance of the act or acts complained
of during the litigation would probably work injustice to the applicant; or
(c)
That a party, court, agency or a person is doing, threatening, or is attempting to do,
or is procuring or suffering to be done, some act or acts probably in violation of the rights of
the applicant respecting the subject of the action or proceeding, and tending to render the
judgment ineffectual.
And following jurisprudence, these requisites must be proved before a writ of preliminary
injunction, be it mandatory or prohibitory, will issue: HcDATC
(1)
The applicant must have a clear and unmistakable right to be protected, that is a
right in esse;
(2)

There is a material and substantial invasion of such right;

(3)

There is an urgent need for the writ to prevent irreparable injury to the applicant; and

(4)
No other ordinary, speedy, and adequate remedy exists to prevent the infliction of
irreparable injury. (emphasis supplied)
It is thus ineluctable that for it to be entitled to the writ, the APMP must show that it has a
clear and unmistakable right that is violated and that there is an urgent necessity for its
issuance. 12 That APMP had cause of action and the standing to interpose the action for
prohibition did not ipso facto call for the grant of injunctive relief in its favor without it
proving its entitlement thereto.
Transfield Philippines, Inc. v. Luzon Hydro Corporation, 13 illuminates on the right of a party
to injunctive relief:
Before a writ of preliminary injunction may be issued, there must be a clear showing by the
complaint that there exists a right to be protected and that the acts against which the writ is
to be directed are violative of the said right. It must be shown that the invasion of the right
sought to be protected is material and substantial, that the right of complainant is clear and
unmistakable and that there is an urgent and paramount necessity for the writ to prevent

serious damage. Moreover, an injunctive remedy may only be resorted to when there is a
pressing necessity to avoid injurious consequences which cannot be remedied under any
standard compensation. (emphasis supplied)
Contrary to public respondent's ruling, APMP failed to adduce any evidence to prove that it
had a clear and unmistakable right which was or would be violated by the enforcement of
E.O. 486. The filing of the petition at the court a quo was anchored on APMP and its
members' fear of loss or reduction of their income once E.O. 486 is implemented and
imported plastic and similar products flood the domestic market due to reduced tariff rates.
As correctly posited by petitioner, APMP was seeking protection over "future economic
benefits" which, at best, it had an inchoate right to. IDTHcA
More importantly, tariff protection is not a right, but a privilege granted by the government
and, therefore, APMP cannot claim redress for alleged violation thereof. In a similar case
wherein the validity of R.A. 9337 with respect to provisions authorizing the President to
increase the value-added tax (VAT) rates, the Court held:
The input tax is not a property or a property right within the constitutional purview of the
due process clause. A VAT-registered person's entitlement to the creditable input tax is a
mere statutory privilege.
The distinction between statutory privileges and vested rights must be borne in mind for
persons have no vested rights in statutory privileges. The state may change or take away
rights, which were created by the law of the state, although it may not take away property,
which was vested by virtue of such rights. 14 (emphasis supplied)
Assuming arguendo that it was upon the government's assurances that the members of
APMP allegedly "invested hundred of millions of dollars in putting up the necessary
infrastructure," that does not vest upon APMP a right which must be protected.
Respecting the element of "irreparable injury," the landmark case of Social Security
Commission v. Bayona 15 teaches:
Damages are irreparable within the meaning of the rule relative to the issuance of injunction
where there is no standard by which their amount can be measured with reasonable
accuracy (Crouc v. Central Labor Council, 83 ALR, 193). "An irreparable injury which a court
of equity will enjoin includes that degree of wrong of a repeated and continuing kind which
produce hurt, inconvenience, or damage that can be estimated only by conjecture, and not
by any accurate standard of measurement" (Phipps v. Rogue River Valley Canal Co., 7 ALR,
741). An irreparable injury to authorize an injunction consists of "a serious charge of, or is
destructive to, the property it affects, either physically or in the character in which it has
been held and enjoined, or when the property has some peculiar quality or use, so that its
pecuniary value will not fairly recompense the owner of the loss thereof" (Dunker v. Field and
Tub Club, 92 P., 502). (emphasis supplied) ACIESH
As does the more recent case of Philippine Air Lines v. National Labor Relations Commission:
16
An injury is considered irreparable if it is of such constant and frequent recurrence that no
fair and reasonable redress can be had therefor in a court of law, or where there is no
standard by which their amount can be measured with reasonable accuracy, that is, it is not
susceptible of mathematical computation. It is considered irreparable injury when it cannot
be adequately compensated in damages due to the nature of the injury itself or the nature
of the right or property injured or when there exists no certain pecuniary standard for the
measurement of damages. (emphasis supplied)

In the present case, aside from APMP's allegations that the reduced tariff rates will adversely
affect its members' business and may lead to closure, there is no showing what "irreparable
injury" it stood to suffer with the implementation of E.O. 486.
IN FINE, not only is there no showing of a clear right on the part of APMP which was violated;
the injury sought to be protected is prospective in nature, hence, the injunctive relief should
not have been granted.
WHEREFORE, the petition is PARTLY GRANTED. The Omnibus Order dated February 6, 2007
issued by public respondent Hon. Judge Jenny Lind R. Aldecoa-Delorino is REVERSED insofar
as it granted a Writ of Preliminary Injunction in favor of private respondent, Association of
Petrochemical Manufacturers of the Philippines (APMP). Accordingly, the Writ is DISSOLVED,
and the case REMANDED to the court of origin for further appropriate proceedings. HIACac
SO ORDERED.
Corona, C.J., Carpio, Velasco, Jr., Nachura, Leonardo-de Castro, Brion, Peralta, Bersamin, Del
Castillo, Abad, Villarama, Jr., Perez and Mendoza, JJ., concur.
Sereno, J., took no part.