If you are planning to do company incorporation in Malaysia, one of the conditions you will have to meet is to have a company secretary. The company secretary is a crucial position in a company and fulfills many of the roles demanded by the new Malaysian Company Act of 2016.
The company secretary is concerned with different issues of the law concerning company governance. These include tax compliance and any other laws that come up within the sphere of company matters. When establishing a company in Malaysia, the company secretary is the person responsible for ensuring that all incorporation documents and requirements are properly met.
Hiring Requirements for a Company Secretary
The requirements for a Malaysia company secretary are set out by the Companies Act 2016. These include:
A human person of at least 18 years of age and with his principal or only place of residence in Malaysia
The individual should not be in a bankrupt situation or a convict of any
He or she should be aware of the Memorandum and Articles of Association of the company.
The company secretary should have deep knowledge and understanding of Malaysian company securities laws and regulations.
He or she should ensure correct procedures are followed and adhere to it in accordance with the Malaysian Companies Act 2016
The company secretary should have an understanding of “The Company Secretary’s Code of Ethics” issued by the Companies Commission of Malaysia
A member a professional body approved by the Ministry, or a licensed secretary granted by the SSM Malaysia (Companies Commission of Malaysia, CCM) pursuant the Companies Act.
The bodies approved by the CCM as adequate to producing qualified company secretaries include:
The Malaysian Association of The Institute of Chartered Secretaries and Administrators (MAICSA)
Malaysian Association of Company Secretaries (MACS)
The Malaysian law Bar
The Malaysian Institute of Accountants (MIA)
Malaysian Association of Certified Public Accountants (MACPA)
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Roles in Statutory & Compliance Issues
Legal issues and matters of compliance with the law fall within the purview of the company secretary. During company incorporation and after, the company secretary should advise on legal and tax compliance maters including:
Ensure that any changes in the company’s statutory requirements are lodged with the registrar of Companies within the required period of time.
Advising the directors on legal issues regarding shares, debentures, participatory interests, rights, options and contracts according to the Companies Act 2016 including -Substantial shareholdings disclosure -The Directors’ share dealing rules -An Announcements and reporting rules.
Company Secretary ‘s Role in Meetings
The first duty of the company secretary in meetings is to advise the board of directors on the dates of the company’s annual general meeting. In regards to the company’s meetings, the company secretary should:
Prepare the agenda items and papers together with the chairman or managing director
Book and arrange the meeting venue
Table all minutes and resolutions of the previous company’s AGM
Take the minutes during the meeting which should reflect the true proceedings in a written accurately, concisely and in simple language.
Advise the chairman and board of directors on response to issues during the
Submit the annual returns during the meeting
Prepare and ensure the AGM’s minutes are the company’s letterhead and certified by the chairman of the board and/or the company secretary.
Other Advisory Roles
Altering any changes in the articles and memorandum of association including change of name, change of object clauses and articles, and change of authorized share capital
Overseeing transfer of shares, splitting of share certificates and issuance of new certificates of shares
Allotment of company shares, rights, bonus issue, and declaration of dividends
Doing company searches
Certifying any documents needing certification by the secretary
Attending company board meetings, extraordinary general meetings and adjourned annual general meetings
Preparing documents and tools other than those in the Malaysian Companies Act 2016.
Prolonged legal advisory services as required by the company.
How to Appoint a Company Secretary
The appointment of a company secretary is guided by the Malaysian Company Act 2016. It is supervised by the Company’s Commission of Malaysia.
The company’s board of directors must approve the appointment.
The particulars of the Directors, Managers and Secretaries and any Changes and Particulars have to be lodged with CCM notifying of the appointment of the company secretary within one month from the date of the appointment.
The CCM updates the Register of Secretaries
If more than 1 company secretary is to be appointed it can be done in a single resolution.
In the case of incorporating a new company in Malaysia and where the company secretary is the first named secretary in the Memorandum and Articles of Association of the company, the secretary has to execute a Declaration by a Person before Appointment as Secretary. This is lodged in the statutory records of the company.
The incorporation documents are submitted to the CCM. In case the appointment of the company secretary is temporary or has not been done during incorporation, the appointment should be done within one month of issuance of the Certificate of Incorporation. This appointment applies retrospectively from the date of incorporation of the company.
The company must submit Form 49 to the CCM. This form which gives particulars in register of Directors, Managers and Secretaries and any Changes and Particulars.
Vacation of Office by Company Secretary
According to the Companies Act 2016 the position of a company secretary can be vacated voluntarily or involuntarily. Voluntary vacation is described as that through resignation or cessation of contract. Involuntary vacation of office is described as that through death, removal or dismissal.
The position of the company secretary cannot be left vacant for more than one month at any one time.
In case the company secretary is unable to locate the company’s director(s), at the last known residential address, the secretary may submit of intention to resign with the CCM. In this case secretary shall cease to be the secretary of the company on the expiry of one month from the date of notice. However vacation of office by the by the company secretary does not exempt the secretary from liability for any act or omission done before the secretary vacated that office.
The company must lodge Form 48E with the CCM when the company secretary vacates office.