How A Certified Company Secretary Is Appointed & Terminated
Who Qualifies As A Company Secretary?
The Companies Act of Malaysia sets the qualifications for a company secretary as:
- A member of a professional body or any other body prescribed by the Malaysia Ministry of Trade. Company secretaries can be drawn from these bodies:
- A Chartered Accountant registered under Malaysian Institute of Accountants (MIA) )
- A Chartered Secretary registered Malaysian Institute of Chartered Secretaries and Administrators (MAICSA) )
- A Licensed Secretary licensed by Company Commission of Malaysia to be company secretary)
- A Lawyer registered with Malaysian Bar, or relevant authorities.
- The person has a license from the Companies Commission of Malaysia (CCM) that was also known as Registrar of Companies ROC). Any person practicing without a license is liable for prosecution and a penalty not exceeding Five Thousand Ringgit.
- The company must name a company secretary at the point of submitting incorporation documents to the Registrar of Companies, also known as Suruhanjaya Syarikat Malaysia (SSM). If this is not done, the company must do so within 30 days of receiving the Certificate of Incorporation.
Appointment And Registration Of A Company Secretary
- The first secretary shall be named in the articles of association. If this is done the appointment is effective from the date of incorporation.
- Any subsequent appointment apart from the first secretary will be done by the board which only requires formal board resolution.
- The appointment is recorded on Form 49, which is filed with the Registrar of Companies within 30 days of receiving the Certificate of Incorporation
- The Registrar of Companies shall enter the details of the company secretary register book of the company
The Companies Act allows the appointment of more than one company secretary. Large companies that have other branches across the globe can register several company secretaries for easier handling of legal matters across borders.
Resignation & Removal Of A Company Secretary
In case of a company secretary resigning, the procedure is as follows:
- The company secretary will issue a letter of resignation to the board.
- The position of the company secretary is to be filled within 30 days of declaration of the vacancy. Ideally, the removal of secretary and appointment is done simultaneously.
- A new company secretary is submitted to the Registrar of companies using Form 49 who will then record the changes in the Company’s Register.
Disqualifying A Company Secretary
The company secretary of a company in Malaysia can be disqualified in the following circumstances:
(a) A declaration of bankruptcy.
(b) A criminal conviction whether within or without Malaysia of any offence mentioned in the Companies Act.
(c) When he ceases to be a member of a body prescribed by the Minister under which the company secretary was admitted.
(d) When the company secretary ceases to be a holder of a valid license.
Vacation of Office of Company Secretary In A Dormant Company
When a company secretary needs to leave a dormant company, the procedure is as follows:
- He shall write a letter of resignation and address it to the last known address of the board of directors.
- He shall file an Intention to Vacate Office of Secretary through Form 48E after failure to contact the directors from last known address.
- The Companies Registrar shall declare the position vacant within one month of receiving Form 48E.
Why A Company Secretary Is Needed
- The law requires that every company (Sdn Bhd or Berhad) MUST appoint at least one Company Secretary.
- The directors cannot be company secretaries at the same time.
- A company secretary appointed by the Board of Directors will look after and conduct all procedural matters as required under the Companies Act.
- The company secretary is able to keep tabs of different regulations that touch the company’s matters. This is important as the business environment is fluid and the company may be caught unawares and unprepared by laws that would have disastrous bearing on the company.
- A company secretary can quicken the process of company incorporation.
- A company secretary will look after the interests of the company and the board of directors ensuring that these parties are not exposed to liability when operating in Malaysia.