The secretary of a company must be a natural person of full age who has his principal or only place of residence in Malaysia. He must be a member of a prescribed body or is licensed by the Registrar of Companies (Companies Commission Malaysia).
The use of word Secretary in the name of this specialization is a bit misleading for one who is new to the concept. A Company Secretary is a professional whose role in a corporate set up in that of an adviser for legal matters. He or She is a very important member of the Company’s Management to handle all paperwork’s, statutory documents and procedural matters that running of the company involves. A Company Secretary has been recognized by corporate law as one of the officers of the Company. The knowledge that he or she acquires during training makes them versatile enough to carry out functions in various areas like Finance, Accounts, Legal Administrations and Personnel Division.
In large and medium size business organizations, a company secretary role includes incorporation of the Company, processing applications for management appointments, remunerations, inter-corporate investment and loans, handling public issues including listing of shares and debentures, conducting both board and general meeting, maintenance of records, registers and minutes of the meetings. In short, it would suffice to say that all legal and procedural matters as per the Companies Act and all other applicable laws fall under the duties of a Company Secretary.
A company secretary of today is a company officer who is endorsed with heavier responsibilities and a greater power, duties which demand for ethical behavior from company secretaries at all times.
Every company shall have one or more company secretaries, each of whom shall be a natural person of full age. With effect from 10th October 2016, NO PERSON shall act as a company secretary to a company.
(1) A company shall have at least one secretary who shall be-
(a) A natural person
(b) Eighteen years of age and above
(c) A citizen or permanent resident of Malaysia
Who shall ordinarily reside in Malaysia by having principal place of residence in Malaysia.
(2) A secretary shall be-
(a) A member of a body as set out in the Fourth Schedule,
(b) A person licensed by the Commission under section 20g of the Companies Commission of Malaysia Act 2001.
(3) For the purposes of paragraph (2)(a), the Minister may prescribe any professional body or any other body by notification in the Gazette and may impose any terms and conditions as he thinks fit.
(4) The company and every director who contravene this section commit an offence.
The registrations for company only can be done by the Company Secretary.A registered company is a company incorporated or formed by registration under Companies Acts, 1965. The incorporation is administered by the Suruhanjaya Syarikat Malaysia. Both registrations come under the jurisdiction of the Ministry of Domestic Trade And Consumer Affairs.
The Companies Act 2016 requires that every company to appoint at least one or more company secretary and determine the terms and conditions of such appointment.
The appointment of the first secretary shall be made within thirty days from the date of incorporation of a company.
(1) The Board shall appoint a secretary and determine the terms and conditions of such appointment.
(2) Notwithstanding subsection (1), the appointment of the first secretary shall be made within thirty days from the date of incorporation of a company.
(3) No person shall be appointed as a secretary unless-
(a) He has consented in writing to be appointed as a secretary
(b) He is qualified under subsection 235(2)
(c) He is not disqualified under section 238.
(4) The company and every person who contravene this section commit an offence.
(1) Subject to the constitution or terms of appointment, a secretary may resign from his office by giving a notice to the Board.
(2) If none of the directors of the company can be communicated with at the last known residential address, the secretary may, notwithstanding subsection 235(1), notify the Registrar of that fact and of his intention to resign from the office.
(3) The secretary shall cease to be the secretary of the company –
(a) On the expiry of thirty days from the date of the notice lodged under subsection (1) or the period specified in the constitution or the terms of appointment, as the case may be
(b) On the expiry of thirty days from the date of the notice to the Registrar under subsection (2)
(4) Nothing in subsections (1) and (2) shall relieve the secretary from liability for any act or omission done before the secretary vacated that office.
The board may remove a secretary from it office in accordance with the terms of appointment or the constitution.
(1) A person shall be disqualified to act as secretary if-
(a) He is an undischarged bankrupt
(b) He is convicted whether in or outside Malaysia of any offence referred to in section 198
(c) He ceases to be a holder of a practicing certificate issued by the Registrar under section 241.
(2) Notwithstanding subsection (1), if the Registrar is of the opinion that a person has failed to act honestly or use reasonable diligence in the discharge of his duties as a secretary, the Registrar may require the person to show cause why his practicing certificate should not be revoked or why he should not be disqualified from acting as a secretary of a company.
(3) If a person continues to act as a secretary for a company after the person is disqualified under this section without leave of the Court, the secretary and every director who knowingly permits the person to act in that capacity commit an offence.
The office of the secretary of a company shall not be left vacant for more than thirty days at any one time.
(1) Any person who is qualified to act as a secretary and who desires to act as a secretary shall be registered under this section before he can act as a secretary.
(2) The Registrar shall cause a register of secretaries to be kept and shall cause to be entered in the register in relation to a secretary-
(a) The name of the secretary.
(b) The residential address and business address of the secretary
(c) The details of the qualifications referred to in subsection 235(2)
(d) Such other information as the Registrar may require.
(3) The Registrar, before registering such person, may-
(a) Require him to produce any evidence to his satisfaction of the qualification as stated under subsection 235(2)
(b) Impose any other conditions that he deems fit.
(4) If the requirements under subsection (3) are satisfied, the Registrar shall-
(a) Enter the particulars in the register of secretaries
(b) Issue a practicing certificate in such from as the Registrar may determine.
(5) On or after the commencement of this Act, a person who is a secretary of a company and who is not registered under subsection (1) may continue to act as a secretary to the company for a period of not more than twelve months or any longer period as the Registrar may allow.
(6) After the expiry of the period referred to in subsection (5), a person who fails to comply with the requirement to register shall be deemed to have not been registered under this section.
(7) The Minister shall have the power to make regulations on any matters relating to any practicing certificate issued under this section.
(8) Any person who contravenes subsection (1) commits an offences.
A person is prohibited to act in a dual capacity as both a director and a secretary in a situation that requires or authorizes anything to be done by a director and a secretary.
S139 (1) CA1965
Natural person of full age, every company shall have at least one secretary who has his principle or only place of residence in Malaysia
S139 (1A) CA1965
The office of secretary of a company shall not be left vacant for more than one month at any onetime.
The role is not of a clerical one but as a Chief Administrative Officer who is entrusted with legal responsibilities.
He must be a member of a professional body or any other body which has been prescribed under Section 235(2)(a) of the Act; or
(b) he is licensed by the Registrar as provided under Section 235(2)(b) of the Act.
A company secretary‟s duties are governed by the by the Act, common law, the constitution and the contract of service.
If none of the directors of the company can be communicated with at the last known residential address, the secretary may, notwithstanding subsection 235(1), notify the Registrar of that fact and of his intention to resign from the office.
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