Mr. Benedicto M. Hornilla

December 10, 1990 Mr. Benedicto M. Hornilla Manila Public School Teachers Association, Inc. 933 Catalua St. Sampaloc, Manila S i r : This refers to your letter dated November 23, 1990 requesting opinion on the queries posed therein relative to the filling of vacancy in the membership of the Board of Directors. cdlex As stated, Mrs. Luzviminda V. Galang, a secondary school teacher of Rajah Soliman High School, was elected member of Directors of the Manila Public School Teachers Association, Inc. (MPSTA) in its election held on March 21, 1990 together with the other officers and members of the Board. Mrs. Galang subsequently filed a study leave of absence covering the period from June 10, 1990 to June 9, 1991 to enable her to enjoy a DECS-TUP study grant for the same period. Your queries are: Does her case fall under Section 6 of Article V of the Amended By-Laws of MPSTA? If so, is she automatically replaced by the candidate who obtained the next highest number of votes in the secondary teacher category? Who will formally notify Mrs. Galang and the candidate concerned of such replacement? What is the date of effectivity of said replacement? Relative thereto, please be advised that the Commission refrains from rendering categorical answers on queries based on allegations which can only be clarified and determined in a proper proceeding. Like in other letter-queries of similar nature, the Commission has adopted the policy of not taking action thereon for the reason that the answer or opinion which may be rendered would not be binding upon private parties who would in all probability, if the opinion happens to be adverse to their interest, take issue therewith and contest it before the Court. However, for information purposes only, the following may be imparted. The manner of filling of vacancies in the Board of Directors is provided for under Section 29 of the Corporation Code quoted hereunder: "SECTION 29. Vacancies in the office of director or trustee . Any vacancy occurring in the board of directors or trustees other than by removal by the stockholders or members or by expiration of term, may be filled by the vote of at least a majority of the remaining directors or trustees, if still constituting a quorum; otherwise, said vacancies must be filled by the stockholders in a regular or special meeting called for that purpose. A director or trustee so elected to fill a vacancy shall be elected only for the unexpired term of his predecessor in office. ...." It has to be emphasized that any provision in the by-laws which is contrary to the provisions of the Corporation Code is void and ineffective. The By-laws are subordinate to the Corporation Code, and should therefore not be inconsistent with the latter. In case of conflict between the Corporation Code and by-laws, the former shall prevail. Please be advised accordingly. (SGD.) RODOLFO L. SAMARISTA Associate Commissioner