Voting by Mail

December 17, 2004 SEC OPINION NO. 50-04 Voting by Mail Dr. Carlos E. Infante President Canlaon Medical Society Room 306 Medical Arts Building Riverside Medical Center B.S. Aquino Drive, Bacolod City S i r : This refers to your letter dated 25 October 2004 inquiring whether mail voting can be exercised by the members of Philippine Medical Association, Inc. (PMA) even in the absence of a provision in the by-laws. Section 89 of the Corporation Code delineates the right of a member to vote, thus: "Section 89. Right to Vote. The right of the member 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. ... Voting by mail or other similar means by members of non-stock corporations may be authorized by the by-laws of non-stock corporations with the approval of, and under such conditions which may be, prescribed by, the Securities and Exchange Commission." Moreover, Article II, Section 2 paragraph b of the by-laws provides and we quote: "Section 2. Rights. A member in good standing is entitled to: xxx xxx xxx B. Vote and be voted upon, subject to limitations as provided that "Section 4. Beginning on the day following the last day of election period, the National Comelec shall undertake the tallying of the ballots received by mail. Candidates may be represented at this tallying process by their designated representatives. The results of this counting process shall be added to the results obtained in component societies on the last day of the election period and reported to the National Comelec." In the aforequoted provision of the by-laws, it made mention that the right of a member to vote and be voted shall also be subject to limitations of PMA Election Code. Thus, PMA drafted its Election Code to accommodate voting by Mail as one of the modes in exercising the right to vote. 2004cdtai The provision of Section 89 of the Corporation Code is explicit on the right of a member to vote by mail. Voting by mail must be clearly set forth in the by-laws subject to SEC approval and such terms and conditions that may be imposed by the Commission before it can be exercised by the members. Considering the absence of a provision allowing mail voting in the by-laws, all votes cast by mail is violative of the cited proviso of the Code. Very truly yours, (SGD.) ROSALINA T. TESORIO Officer-in-Charge Office of the General Counsel