FAQs

Here are the Frequently Asked Questions on

Constitution of Companies

1 TIMING OF ADOPTION
How to adopt a Constitution for the very first time post
incorporation or any time during the lifetime of a company
if it has no separate Constitution of its own?

2 DO NOTHING
What do I need to do if I wish to do nothing with the legacy
MAA? Can I sit around and look pretty?

3 AMENDMENT
How to amend the legacy MAA? Can I adopt a new
Constitution instead for an existing company?

4 LEGACY M&A
What steps to take to do away totally with the legacy MAA?

5 CHANGE IN THE MIDDLE

What do I need to do if the company changes its mind and
wish to adopt a Constitution after it has done away with the
legacy MAA before? Can I then in turn do away with the
Constitution after that?

HOW TO AMEND
6

How do I amend a Constitution?

Constipation ?
Constitution ?
 Step-by-step
Practical Guide on

Mastering the
Constitution
of Companies

PART A PART B

More on the Practice

The Law and Practice Typical types of
relating to Constitution Constitution
Stamping of
Constitution?

PART C PART D
Magical Phrases Questions
relating to &
Constitution Answers
PART A - LAW RELATING
TO CONSTITUTION
* Part II Division 5
Sections 31 to 39
* Section 619(3)
* Third Schedule (Section 212 - subject to the Constitution)

SECTION 31 - CONSTITUTION OF
A COMPANY

SECTION 32 - COMPANY MAY

ADOPT A CONSTITUTION

SECTION 33 - EFFECTS OF
ADOPTING A CONSTITUTION

SECTION 34 - FORM OF
CONSTITUTION

SECTION 35 - CONTENTS

SECTION 36 - ALTER OR
AMEND THE CONSTITUTION

SECTION 37 - COURT MAY ALTER OR

AMEND CONSTITUTION

SECTION 38 - CLBG SHALL

HAVE A CONSTITUTION

SECTION 39 - DOCTRINE OF
CONSTRUCTIVE NOTICE 

SECTION 619(3) -
TRANSITIONAL PROVISION

THIRD SCHEDULE
SECTION 121
www.CompaniesMethod.com
 SECTION 31
CONSTITUTION OF A
COMPANY

A company may or may not adopt

Except for CLBG
A tripartite contract binding the
company, its directors and
members
If no separate Constitution, then
to refer to the Act as the
provisions are already in the
substantive law
COMMENTARIES

Clause 31 seeks to provide that a company

may but does not need to have a constitution.
The effect of a company having a
 constitution is that the company, its
directors and members will be bound by that
constitution to the extent of being modified
by the proposed Act. If a company has no
constitution, the provisions of the proposed
Act shall apply on the company, its directors
of (sic and) members.
WWW.COMPANIESMETHOD.COM
 SECTION 32
COMPANY MAY ADOPT A
CONSTITUTION

A company may adopt a Constitution by

special resolution
No effect if it contravenes or is inconsistent
with the Companies Act 2016
Once adopted, it binds the company, its
directors and its members
Lodge new Constitution (no need to attach
special resolution but state date only as per
the form) to Registrar within 30 days from
date of adoption
Failure to lodge the new Constitution within
the time as stipulated, the fine is  maximum
RM50,000 with daily fine of a maximum of
RM500 if offence continues post conviction

COMMENTARIES

Clause 32 seeks to provide that a company

may adopt a constitution once the company
has been incorporated and it shall be done by
way of passing a resolution. Once a
constitution is adopted, it shall be binding on
the company, its directors and members.
WWW.COMPANIESMETHOD.COM
 Step By Step Procedures

Adopt a Constitution 
For Private Limited Companies Only
STEP

DCR or Board Meeting 01

Circulate a DCR or call for a Board
Meeting (Proposal by Board to
adopt a Constitution)

21 Days Notice
If EGM, notice of 21 days
STEP (Note: no Constitution yet

02 so no “or such longer

period”) to pass a special
resolution to adopt a
Constitution

MCR or EGM STEP

Circulate MCR or convene
the EGM 03 Lodge to SSM
If special resolution is passed,
lodge the Constitution to SSM with
the Form under section 32 of
Schedule A within 30 days from
the date of adoption and pay the
prescribed fee (RM100 to be
confirmed - item 48, Schedule of
Fees)

(Note: to stamp Constitution at

RM100 if adopting a
Constitution for the very first time
STEP
or re-adopting one any

04 time during the life of a company) 

Successful Adoption
of Constitution
Thereafter, the company
shall refer to the Companies
Act 2016 and the
Constitution for matters STEP
05
regulating the company, its
directors and its members.

www. CompaniesMethod.com
 SECTION 33
EFFECT OF ADOPTING A
CONSTITUTION

As if it had been signed and sealed by each

member;
Each member covenants to observe all
provisions of the Constitution; and
If any moneys payable under the Constitution,
it is a debt due by such a member.

COMMENTARIES

Clause 33 seeks to provide that the effect of

adopting a constitution is that the document
will bind the company(, its directors) and its
members.

WWW.COMPANIESMETHOD.COM
 SECTION 34
FORM OF CONSTITUTION

For a company limited by shares incorporated

under the Companies Act 2016, a document
adopted as its Constitution under Section 32;
For a company limited by guarantee
incorporated under Companies Act 2016, a
document lodged for registration of the
company under Section 38; or
For a company registered under CA 1965, the
MAA as originally registered or as altered
under CA 1965, including Table A.

COMMENTARIES

Clause 34 seeks to clarify as to what

constitute a constitution of a company. This
clause states that for companies which are
incorporated under the proposed Act, the
constitution shall be that under clause 32 or
38, and for companies which are incorporated
under the corresponding previous written law,
the constitution shall be the memorandum
and articles of association of the companies
as previously lodged with the Registrar.
WWW.COMPANIESMETHOD.COM
 SECTION 35
CONTENTS OF
CONSTITUTION

May contain the following -

The objects of the Company - full capacity
and powers to achieve such objects unless
the Constitution provides otherwise and
restricted if outside such objects;
Capacity, rights, powers or privileges if the
provision restricts any or all of them;
Matters contemplated by Companies Act
2016 to be included in the Constitution; and
Other matters, the company wishes to
included in the Constitution.

COMMENTARIES

Clause 35 seeks to provide that a company

may, if it decides to adopt a constitution,
include matters set out in this clause or any
other matters including provisions that
restrict the company from carrying out
certain objects or activities.
WWW.COMPANIESMETHOD.COM
 SECTION 36
ALTER OR AMEND THE
CONSTITUTION

By special resolution unless the amendment

is prohibited by the Constitution itself;
Binding on company and its members
accordingly from date of resolution or such
later date as specified in the resolution; and
Lodge with SSM such amended Constitution
within 30 days from the date of the special
resolution (no need to attach special
resolution but state date only as per the
form).
Failure to lodge the amended Constitution
within the time as stipulated the fine is
 maximum of RM10,000 with daily fine of a
maximum of RM500 if offence continues
post conviction

COMMENTARIES

Clause 36 seeks to provide for the

procedures to be followed when a company
alters or amends its constitution.
WWW.COMPANIESMETHOD.COM
 Step By Step Procedures

Alter or Amend the

 Constitution 
For Private Limited Companies Only

STEP
DCR or Board Meeting
01
Circulate a DCR or call for a
Board Meeting (Proposal by
Board to alter or amend the
Constitution);

21 Days Notice
If EGM, notice at least 21 days (or
longer, see Constitution) to pass
a special resolution to alter or
amend the Constitution (make
STEP sure such alteration or
amendment is not prohibited by

02 the Constitution);

STEP
MCR or EGM
Circulate MCR or convene
03
the EGM

Lodge to SSM
If special resolution is
passed, lodge the
Constitution to SSM with
the Form under section 36
STEP of Schedule B within 30

04
days from the date of the
special resolution and pay
the prescribed fee of RM30
(Item 5 - Schedule of Fees);
and
 Successful Alteration
of Constitution
Thereafter, the company shall
refer to the Companies Act
2016 and the amended
Constitution from the date of
resolution or such later date
as specified in the resolution
for matters regulating the STEP

05
company, its directors and its
members.

www. CompaniesMethod.com
 SECTION 37
COURT MAY ALTER OR
AMEND CONSTITUTION

On application by a Director or a member;

Court is satisfied not practicable to alter the
Constitution using the procedures as set in
the Act 2016 or under the Constitution, make
an order to alter or amend the Constitution on
such terms and conditions as it thinks fit; and
Lodge with SSM an office copy of the court
order and the amended Constitution within
30 days from the date of the order. 
Failure to lodge the amended Constitution
within the time as stipulated the fine is
 maximum of RM10,000 with daily fine of a
maximum of RM500 if offence continues
post conviction.

COMMENTARIES

Clause 37 seeks to provide for an alternative

way for companies to alter their constitution
by applying to the Court if the constitution
could not be altered in the usual manner
either in accordance with the proposed Act or
the constitution.
WWW.COMPANIESMETHOD.COM
 Step By Step Procedures

Court to Alter or Amend

the  Constitution 
For Private Limited Companies Only

STEP
Submit Application
to Court 01
Director or a member
submits an application to
Court (if for any reason it is
not practicable to alter the
Constitution using the
procedures as set in the
Companies Act 2016 or under
the constitution);

STEP Makes an Order

02 If Court is satisfied with
reason(s), it makes an order; 

Lodge with SSM

STEP
To lodge with SSM an office copy of
03 the court order and the amended
Constitution within 30 days from the
date of the order with the Form
under section 37 of Schedule B and
pay the prescribed fee (RM100 to be
confirmed - item 46, Schedule of
Fees); and

STEP

Successful Alteration 04
of Constitution
Thereafter, the company shall
refer to the Companies Act 2016
and the amended Constitution
from the date of the court order
for matters regulating the
company, its directors and its
members.

www. CompaniesMethod.com
 SECTION 38
CLBG SHALL HAVE A
CONSTITUTION

KIV to future webinar dedicated to CLBG

COMMENTARIES

Clause 38 provides that it is mandatory for a

company limited by guarantee to have a
constitution. This clause further describes
the matters that should be stated in the
constitution.

WWW.COMPANIESMETHOD.COM
 SECTION 39
ABOLISH DOCTRINE OF
CONSTRUCTIVE NOTICE 

No person shall be deemed to have notice or

knowledge of the content of the Constitution
or any other document relating to a company,
due to the fact that such a Constitution or
document : -
(a) Has been registered by the Registrar; or
(b) Is available for inspection at the
Registered Office of the Company,
With the exception of documents relating to
instrument of charges.

COMMENTARIES

Clause 39 seeks to provide for the non-

application of the doctrine of constructive
notice on the contents of a constitution or
any other document of a company except
with regard to documents relating to charges.
WWW.COMPANIESMETHOD.COM
 SECTION 619(3)
TRANSITIONAL
PROVISION

The Legacy Memorandum and Articles of

Association of existing company in force and
operative at the commencement of Companies
Act 2016, and the provisions Table A under the
Fourth Schedule of the CA 1965 if adopted as all
or part of the articles of association of a
company at the commencement of Companies
Act 2016, shall have the effect as if made or
adopted under Companies Act 2016, unless
otherwise resolved by the Company.

NO PAR VALUE
Need to amend legacy MAA to remove
the Par Value?

Answer: No need to specifically amend the

legacy MAA for this abolition of par value
because of the wordings of section 74 -
All shares issued before or upon the
commencement of this Act shall have no
par or nominal value.

UNLIMITED CAPACITY
Objects of the Company
* Allow
* Prohibit
* Restrict
If a company has stated its objects, is it a re-
introduction of the ultra vires conceptt
THIRD SCHEDULE OF THE

COMPANIES ACT 2016

1
CHAIRPERSON

NOTICE OF PROCEEDINGS OF THE

2 BOARD MEETING

3 METHODS OF HOLDING MEETING

4 QUORUM

5 VOTING

6 MINUTES

7 RESOLUTIONS

MEETING AND
-

IN
AT ADJOURNED

WRITING

OTHER PROCEEDINGS

COMMITTEES OF THE BOARD

MANAGING DIRECTOR

10

11
ASSOCIATE DIRECTOR

Effects of s212 pertaining to

the Third Schedule

Effectively, the provisions under the Third Schedule

shall apply by default subject to the Constitution -

means can contract out of it!

 Part B

More on the
Practice

Here are the Frequently Asked Questions on

Constitution of Companies

1 TIMING OF ADOPTION
How to adopt a Constitution for the very first time post
incorporation or any time during the lifetime of a company
if it has no separate Constitution of its own?

2 DO NOTHING
What do I need to do if I wish to do nothing with the legacy
MAA? Can I sit around and look pretty?

3 AMENDMENT
How to amend the legacy MAA? Can I adopt a new
Constitution instead for an existing company?

4 LEGACY M&A
What steps to take to do away totally with the legacy MAA?

5 CHANGE IN THE MIDDLE

What do I need to do if the company changes its mind and
wish to adopt a Constitution after it has done away with the
legacy MAA before? Can I then in turn do away with the
Constitution after that?

HOW TO AMEND
6

How do I amend a Constitution?

Constipation ?
Constitution ?
 If I am incorporating
a new company, do I want to
have a constitution

If Yes, WHY If no, WHY

If I had done away with the

legacy MAA, can I adopt a
Constitution later

If a company has never had a Constitution

before, can I adopt one any time

QUESTIONS TO
ASK YOUSELF
From zero to master
 If an existing company
with the legacy M&A,
what options
do I have

continue as is...
Status quo ...
can I adopt a
Constitution later

Do away
with it

Amend it

QUESTIONS TO
ASK YOUSELF
from zero to master
 Stamping of 
Constitution

Tripartite contract between company, its

directors and its members

First adoption post incorporation or any

time during the life of a company, adopt
a Constitution for the very first time

What is the effect of no stamping? Does

it affects its validity ?

FAQ:
If a company opts to have constitution post
incorporation, does it need to be stamped?
Alternatively, if a company adopts a
constitution for the very first time in any time
during the life of a company, do we need to
stamp the constitution at least once?
.

ANSWER:

A company which opts to adopt a constitution

will need to stamp the constitution. The e-
stamping service is available through the
MyCoID 2016 Portal.
 CONSTITUTION  
KEPT AT REGISTERED
OFFICE

If a company has a Constitution, it

shall be kept at the registered office
of the company or elsewhere
provided notice is given to the
Registrar (Section 47(1)(b) and (2)).

Lodgment to SSM
WITHIN 30 DAYS FROM

Date of adoption
(which may be the
same date as the
special resolution)
for the adoption of
a new Constitution;

Date of special
resolution for the
alteration or
amendment to a
Constitution by the
company; or

Date of court order

for the alteration or
amendment to a
Constitution by the
Court.

www.CompaniesMethod.com
 PENALTIES
FAILURE TO LODGE TO SSM
WITHIN THE STIPULATED DEADLINES

RM50,000 for adoption of a new Constitution;

or

RM10,000 for alteration or amendment to a

Constitution by a company or by the Court; and

A continuing penalty of RM500 for each day

the offence continues post conviction.

LODGMENT TO SSM
WITHIN 30 DAYS FROM:-

Date of adoption (may be the date of

the special resolution) for the
adoption of a new Constitution;
Date of special resolution for the
alteration or amendment to a
Constitution by the company; or
Date of court order for the
alteration or amendment to a
Constitution by the Court.
 MAGICAL
PHRASES 
RELATING TO

CONSTITUTION
Notwithstanding
Clauses

Notwithstanding
anything to the
contrary in the
constitution;

Notwithstanding
anything provided
in the
constitution;

Notwithstanding any
provision in this Act
or the constitution;

Notwithstanding the
provisions of this Act
or the constitution;

What does such a phrase with the

word “notwithstanding” mean?

It means that the provisions of the Act or that

particular section prevails and no matter what is
provided in the Constitution, nothing can override
it. In other words, we cannot contract out of it at all.
 Unless 
otherwise 
provided
in the constitution and variations

Unless provided
Unless constitution
otherwise in the
provides otherwise;
constitution;

Unless constitution Otherwise provided

otherwise provides; by its constitution;

Unless provided
otherwise, either Unless the
expressly or constitution itself
impliedly in the prohibits;
constitution;

Unless expressly
Unless stated in the
prohibited in the
constitution;
constitution;

Unless there is a
Unless it is
specific provision in
authorised by the
the company’s
constitution;
constitution;

Except as otherwise
provided by this Act,
the constitution.
 Unless 
otherwise 
provided
What Does it Means ?

Unless constitution
provides otherwise;

It simply means that the constitution of the

company can provide its own provisions different
or varied or modified fromOtherwise
Unless constitution
what is given in the
provided
Companies
otherwiseAct 2016. In otherby
provides; words, it means that
its constitution;
we can contract out of the provisions of the
Companies Act 2016 provided the provision is not
in contrary to or inconsistent with the Companies
Act 2016.

If it has “Unless the constitution itself prohibits”

etc. it means that no amendment etc. can be done
if the constitution itself prohibits;
Unless there is a
specific provision in
the company’s
constitution;

Same goes
Except as with Unless expressly prohibited in the
otherwise
provided by this Act,
constitution means
the constitution.
must state in writing the
prohibition;
 MAGICAL
PHRASES 
RELATING TO

CONSTITUTION
Category 3

Subject to constitution
…… and variations - ;

Subject to the
company’s
constitution;

Subject to any
provision of the
constitution;

Subject to the
provision of the
constitution

Category 4

Just the word “constitution” (198)

T Y P E S O F

Constitution

No separate Constitution of its

own (newly incorporated
company under CA2016);

Constitution for a
Private Limited Company
without actual meetings;

Constitution for a
Private Limited Company
with actual meetings;

Constitution for a
Private Limited Company
with shareholders’ agreement
or joint venture companies;

Constitution for a
Public Limited Company;

Constitution for a
Public Listed Company;

Constitution for a
Company Limited by Guarantee;

Constitution for a
Private Limited Company
with different Classes of shares;

Constitution for a
Private Limited Company
with debentures; and/or

Constitution for a
Private Limited Company
with conversion to stock.
 SAMPLE
RESOLUTIONS
TEMPLATES

ADOPTION OF NEW
CONSTITUTION OF THE COMPANY
“That the Constitution in the form
and manner as set out in Appendix I
be and is hereby adopted as the
Constitution of the Company.”

ALTERATION OF CONSTITUTION
“That the Amended Constitution in
the form and manner as set out in
Appendix I be and is hereby adopted
as the Constitution of the Company
in substitution for and to the
exclusion of the existing
Memorandum and Articles of
Association/Constitution
of (whichever is applicable) the
Company.”

QUESTIONS
&
ANSWERS
SAMPLE SPECIAL
RESOLUTIONS

1 To do away totally with

the legacy MAA or a
Constitution, whichever is
applicable (Need a
resolution of members?
Special or Ordinary?);

To adopt a new
Constitution in place of the
legacy MAA for an existing
2
Company under the
Companies Act 1965;

3 To adopt a new
Constitution for the very
first time for a newly
incorporated company
post incorporation under
the Companies Act 2016;

To adopt a new Constitution

during the lifetime of a
company incorporated under
4
the Companies Act 2016;

5 To amend or alter a
Constitution.

Note:
Item 3 same as item 4
Item 2 same as Item 5