In Malaysia, all firms registered and established there are required to appoint a company secretary. Many firms struggle with this step. Some even consider appointing an audit firm as the company secretary. However, firms who do so must be prepared to deal with the outcome.
Everycompany that has either been established or registered in Malaysia is required to have a minimum of one company secretary. The company secretary is required to be a resident in Malaysia, as well as a member of one of the prescribed professional bodies. Should the company secretary not be a member of any such bodies, the company secretary will need to be licensed by the Companies Commission of Malaysia (SSM) before being allowed to serve in that role. According to Sections 139A (a) and (b) of the Companies Act 1965, chartered accountants, chartered secretaries, lawyers, and licensed secretaries who are at least 18 years old, not bankrupt, and have not violated Section 130(1) of the Companies Act may all serve as company secretaries in Malaysia.
Company secretaries are responsible for a company’s general administration. They are also to ensure that the company is compliant with all existing regulatory and statutory requirements. Other duties of a company secretary include ensuring the integrity of the company’s governance framework, implementing any decisions which have been made by the board of directors, filing annual returns, and preparing board meetings.
Company secretaries are considered to be among the company’s officers, as they advise the board of directors. A company secretary is also the main point of contact for the company’s shareholders. This is especially so regarding matters related to corporate governance. Company secretaries are also essential to their companies with regard to corporate acquisitions, mergers, and disposals. This is because they ensure the effectiveness of all documentation and due diligence disclosures, enable adequate commercial evaluation before any transaction is completed, and ensure punctual execution of all documentation.
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In Malaysia, there are certain legal restrictions on who is allowed to be a company secretary. People who are company auditors, employees of an auditor, or undischarged bankrupts who have not been given adequate clearance by a court are not allowed to be company secretaries. The by-laws (On Professional Ethics, Conduct and Practice) of the Malaysia Institute of Accountants and Section 264 of the Companies Act 2016 state why company auditors are barred from being company secretaries. According to clauses in the by-laws and Section 264, partners and employees of any firm may not serve as directors of an assurance client or audit client, or as a company secretary for an audit client. Furthermore, the spouses of audit partners are not allowed to be directors, employees, or secretaries of the company. In all the examples mentioned, the conflicts of interest that would be generated are deemed to be insurmountable. Therefore, it can be concluded that an audit firm may not be a company secretary in Malaysia.
Any company who violates the law by appointing an audit firm as the company secretary will be punished with a substantial fine. Any person who is or any firm which has been appointed as an auditor has gone against subsection (1) or (4) respectively of Section 264 of the Companies Act 2016. Those who have been convicted of such an offense are to be punished with a fine of up to RM100,000.