V. E. Del Rosario & Partners

November 5, 1998 V. E. Del Rosario & Partners C/o Atty. H. Lani S. Solis Rosadel Building, 1011 Metropolitan Avenue Makati City Gentlemen: This refers to your letter dated October 23, 1998 requesting opinion on the legality of the following: 1. Proposed amendment in the by-laws where proxy is considered only for purposes of establishing a quorum .In such a case, the absentee member will be deprived of voting rights . 2. Voting on the intended amendments to the by-laws by writing the votes on the proxy form furnished by the corporation. Anent the first issue, Section 89 thereof provides: "SECTION 89. Right to vote . The right of the members of any class or classes to vote may be limited, broadened or denied to the extent specified in the articles of incorporation or the by-laws .Unless so limited, broadened or denied, each member, regardless of class, shall be entitled to one vote." Unless otherwise provided by the articles of incorporation or the by-laws , a member may vote by proxy in accordance with the provisions of this Code. xxx xxx xxx." (Emphasis supplied) Accordingly, voting by proxy may be denied in the case of "non-stock corporations" if so stated in the articles of incorporation or by-law. Relative to the second issue, while under Section 89 of the Corporation Code, members of a non-stock corporation may be allowed to vote by mail or other similar means, the same should be treated as a general provision for non-stock corporations applicable only in the absence of specific provision in the Corporation Code on a particular subject matter . Section 48 of the Corporation Code specifically provides for the procedure in amending the by-laws which is applicable to both stock and non-stock corporations. Being a specific provision, it should be treated as an exception to Section 89 of the Corporation Code. Said Section provides in part: "SECTION 48. Amendments to by-laws . The board of directors or trustees by a majority vote thereof; and the owners of at least a majority of the outstanding capital stock, or at least a majority of the members of a non-stock corporation, at a regular or special meeting duly called for the purpose may amend or repeal any by-laws or adopt new by-laws. ..." (Emphasis supplied) LexLib The above underscored provision explicitly requires the casting of votes at a meeting duly called for the purpose. The rationale behind the law is to give all the stockholders/members the opportunity to participate during the deliberation of the amendments to be voted. Accordingly, the second issue raised in your letter is not legally feasible. Very truly yours, (SGD.) DANILO L. CONCEPCION Associate Commissioner