| Lee Hishammuddin Allen & Gledhill

Malaysia’s Response to COVID-19

A brief analysis on the impact of the Movement

Control Order on the Construction Industry

25 MARCH 2020

Issued by LHAG’s Energy Infrastructure & Projects, and International Arbitration Practice Group

© 2020 LHAG, All Rights Reserved

[email protected]
 | Lee Hishammuddin Allen & Gledhill

Impact of COVID-19 on the Construction Industry in Malaysia

| by Dato’ Nitin Nadkarni, Abang Mohd Iwawan & Anis Raihan Asmadi |

IN THIS DOCUMENT As a response to the COVID-19 global epidemic, the Government of

Malaysia recently implemented a Movement Control Order (“MCO”) to
1 | The MCO Laws, take effect from 18 March until 31 March 2020. Essentially, the MCO bars
Regulations & the movement of individuals outside of their homes (with limited
Guidelines
exceptions), prohibits mass gatherings and further, provides for the
Relevant to the
Construction closure of all government and private premises, except for those involved
Industry in “essential services”. As of today, the Prime Minister announced that
the MCO will be extended to 14 April 2020.

5 | Consequences of Whilst several regulations and guidelines have been issued by relevant
Non-Compliance ministries, the impact of the MCO on the construction industry remains
uncertain. Additionally, with the increase in COVID-19 cases in Malaysia
(as well as globally), the possibility of the MCO being extended further
6 | Current &
Potential Issues
should not be discounted.

In this article, we will provide an overview of the applicable laws and

8 | Way Forward regulations issued in relation to the MCO and the potential liabilities
arising from non-compliance thereof, as well as the practical issues
emanating from the MCO, within the construction industry.

LAWS, REGULATIONS & GUIDELINES

The announcement of the MCO was made pursuant to the Prevention and Control of Infectious
Diseases Act 1988 (“PCIDA”) and Police Act 1967. The following were subsequently published
by the Federal Gazette:

• Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order
2020 (“PCID Order 2020”); and

• Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas)
Regulations 2020 (“PCID Regulations 2020”).

The PCID Order 2020 simply declares each and every State and Federal Territory of Malaysia to
be an “infected local area.” The PCID Regulations 2020 on the other hand, set out measures to
be taken to control the spread of COVID-19 in Malaysia, and further stipulate the relevant sectors
regarded as “essential services.”1 It must be noted here that essential services are not expressed
to include the construction industry. Effectively, it appears from the PCID Regulations 2020 that
construction works in general are to be suspended during the MCO period.

1
Schedule of the PCID Regulations 2020.

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However, further guidelines have been issued to provide clarification on the compliance with the
PCID Regulations 2020.2 Of particular relevance to the construction industry are the following
guidelines issued by the Federal ministries:

Media Statement issued by Majlis Keselamatan Negara (National Security Council) on

18 March 2020 (“NSC Statement”)

The NSC issued an official statement that sets out the components of each essential service
which would be allowed to operate during the MCO period. It also provides that certain
non-essential services, such as the construction industry, may proceed with ongoing
construction works that may affect public safety and security if they are not continued.

The continuation of these works however, are subject to prior approval from both the
Department of Works (JKR) and Department of Occupational Safety and Health (DOSH).

FAQs issued by Kementerian Kerja Raya (Ministry of Works) on 18 March 2020 (“KKR
Guidelines”)

The KKR Guidelines affirm that all construction and maintenance works are prohibited
during the MCO period, except for “critical works” which are defined as those which may
cause harm and damage to the workers, public and the environment if they are not
continued (see FAQ No. 3 of the KKR Guidelines). Examples of such works are listed at
FAQ No. 4. These include slope repairs, pothole masking, tunnelling works and traffic
management.

It should be noted that the KKR Guidelines do not expressly require prior approval from
both DOSH and JKR for the execution of the critical works. In contrast to the NSC
Statement, such critical works may be carried out with the recommendation from Project
Director (for governmental projects) and Resident Engineer/Principle Submitting Person
(for private projects). Approval must then be obtained from the persons listed at FAQ No.
5 of KKR Guidelines (i.e. ‘Ketua Pengarah JKR, Pengarah JKR Sabah, Pengarah JKR
Sarawak, Ketua Pengarah Lembaga Lebuhraya Malaysia, Ketua Pengarah Jabatan
Pengairan dan Saliran dan Pihak Berkuasa Tempatan atau Pihak Berkuasa Negeri’).

FAQs issued by Kementerian Pengangkutan Malaysia (Ministry of Transport) on 18

March 2020 (“MOT Guidelines”)

FAQ No. 5 provides that lorries transporting construction materials will be prohibited, but
other types of lorries such as those transporting “essential goods” and food will be allowed
to operate during the MCO period. It is not clear from the MOT Guidelines, of what is meant
by essential goods.

Despite the restriction on land transportation of materials, FAQ No. 9 states that all ports
will remain operational except for cruise ship terminals. It should be noted that whilst the
KKR Guidelines provide for critical works to continue, the MOT Guidelines are silent on the
permissibility of the transportation of construction materials for critical works.

2
Note: The Guidelines may be updated by the respective ministries from time to time

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FAQs issued by Kementerian Perdagangan Antarabangsa dan Industri (Ministry of

International Trade and Industry) on 19 March 2020 (“MITI Guidelines”)

The MITI Guidelines clarify at FAQ No.1 that only critical industries and factories are allowed
to operate during the MCO Period, subject to MITI’s approval. These include the
manufacture of food, household and pharmaceutical products, as well as oil and gas,
chemical and electric products. Factories which do not produce the products listed in the
guidelines are not allowed to operate during the MCO period. Note here that the MITI
Guidelines do not expressly permit the continuation of factories which fabricate materials
for use in the construction of critical works.

However, there is an exception to the above MITI Guidelines and this applies to situations
where it is necessary for the machines and equipment in such factories to operate for
technical reasons. To continue such operation, the employer must file an application to MITI
and set out the relevant reasons.

FAQs issued by Kementerian Perusahaan Perladangan dan Komoditi (Ministry of

Primary Industries) on 20 March 2020 (“KPPK Guidelines”)

All KPPK sectors are subject to the MCO Order. However, there are some relaxations to
certain sub-sectors such as palm oil, rubber and wood. For example, the processing
activities of wood are subject to the obtaining of license from Malaysian Timber Industry
Board (“MTIB”).

FAQs issued by Kementerian Perumahan & Kerajaan Tempatan (Ministry of Housing

and Local Government) on 20 March 2020 (“KPKT Guidelines”)

FAQ No. 7 of the KPKT Guidelines stipulate that house renovation works are prohibited
during the MCO period. Only critical operation are allowed to continue, such as
maintenance works on water, electricity, elevators and pumps. Further, FAQ No. 8 provides
that repair works could only be carried out where the damage is of critical nature and affects
the safety of residents. Pipe leakage would not be considered a critical damage.

FAQs issued by Kementerian Air Tenaga & Sumber Asli (Ministry of Energy and
Natural Resources) on 20 March 2020 (“KATS Guidelines”)

Where there has been disruption in electrical supply during the MCO period, FAQ No. 5
provides that the Tenaga Nasional Berhad (TNB) hotline will be reachable at all times.
Likewise, the operation offices of Suruhanjaya Perkhidmatan Air Negara (SPAN) and Indah
Water Konsortium (IWK) will continue to operate as usual. Therefore, all maintenance works
on water supply and sewage treatment are to be executed as normal (see FAQ Nos. 17,18,
23 and 24).

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FAQs issued by Kementerian Wilayah Persekutuan (Ministry of Federal Territories)

on 24 March 2020 (“KWP Guidelines”)

FAQ No. 1 states that all KWP officers are to work from home during the MCO period. In
respect of tender or quotation bid deadlines that fall within the MCO period, these will be
extended as provided by each platform (FAQ No. 5). For the Federal Territory of Kuala
Lumpur in particular, the premises of Dewan Bandaraya Kuala Lumpur (“DBKL”) and
Pejabat Tanah Dan Galian Wilayah Persekutuan KL (“PTGWP”) will also be closed (FAQ
No. 2 & 3).

FAQs issued by Kementerian Kewangan Malaysia (Ministry of Finance) on 21 March

2020 (“KKM Guidelines”)

The KKM Guidelines amongst others, cover issues relating to contract procurement.
Essentially, all running programmes or projects are to be postponed via a written instruction
from the Superintending Officer or Contract Administrator. This instruction will be in line
with the force majeure clause in the contract. For contracts which are silent on force
majeure, the Guidelines state that the Government may still rely on the principle and
procedure of force majeure in order to deal with the temporary suspension of contractual
works (see Practical Issues below for comments on this matter).

FAQs issued by Kementerian Dalam Negeri (Ministry of Home Affairs) on 21 March

2020 (“KDM Guidelines”)

FAQ No. 3 of the KDM Guidelines provide that where an employer has failed to obey the
MCO and insisted that his employees come to work although their offices or factories are
not regarded as essential services , the employees may directly file a complaint to Polis
Diraja Malaysia (“PDRM”) or Ministry of Health. FAQ No. 5 states that all lorry operations
for delivery of non-essential things are regarded as an offence under Section 7 of the PCID
Regulations 2020 (see table below for consequences of breach of PCID Regulations 2020).
In addition, FAQ No. 40 provides that all matters in relation to the immigration of foreign
workers must be suspended temporarily.

In addition to guidelines issued by the various Federal ministries, it is important for companies to
identify if the state government (where the construction site is located) have also issued state-
specific guidelines in relation to the MCO. For example in Sarawak, the Chief Minister issued a
statement on 17.3.20203 stating, amongst others, that all premises including all factories are to
be closed during the MCO period, except for those providing essential services, and except for
the factories in Samalaju Hi-Tech Samajaya and plywood factories, which are allowed to continue
operation with minimum staff.

3
https://www.sarawak.gov.my/web/home/announcement_view/0/83/

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NON-COMPLIANCE OF THE MCO

Under the PCIDA and its regulations, any person who contravenes any provision thereof shall
be guilty of an offence. In this regard, upon conviction of offences under the PCIDA, the
offender can either be punished with imprisonment and/or liable for a fine – in other words,
there are criminal liabilities attached.

The liability imposed on these persons under Section 7 of PCID Regulations 2020 is a
rebuttable presumption – an assumption that is made by the Court and taken to be true unless
proven otherwise.

Who Is Liable?

Under Section 7 of PCID Regulations 2020, any person who contravenes any provision of the
regulations shall, on conviction, be liable to a fine up to RM1,000.00 and/or imprisonment of up
to six (6) months.

Section 7(2) of PCID Regulations 2020 further extends the liability of an offence to a director,
manager, secretary or other similar officer of a body corporate, who may be charged severally
or jointly in the same proceedings with the body corporate.

Potential Defence Other Liabilities

The burden is on the liable person Whilst it is understood that the MCO is premised on
to prove that there has not been any the PCID Regulations 2020, individuals (or body
contravention of any of the provision corporates) may be liable under other laws.
under the PCID Regulations 2020.
For example, where a person is guilty of an offence
Where a person is liable for an under the PCIDA but no specific penalty has been
offence under the PCID Regulations provided, Section 24 of PCIDA states that :-
2020, Section 7 (2)(b) of the
Regulations 2020 provides that it • For the first offence, imprisonment of up to two (2)
would be a defence for the person if years and/or fine;
he could satisfy Court that :- • For the 2nd of subsequent offence, imprisonment of up
to five (5) years and/or fine;
• the offence was committed • For continuing offence, a further fine of up to RM200
without his consent or for every day during which such offence continues.
connivance; and
In addition, Section 25 of PCIDA provides that
• the person has exercised all due compounds up to RM1,000.00 may be imposed as an
diligence to prevent the alternative.
commission of the offence as he
ought to have exercised, having Another example is the possibility of being penalized
regard to the nature of his under the Street, Drainage and Building Act 1974,
functions in that capacity and to for contravening the MCO, which carries a fine of up
all the circumstances. to RM50,000.00.

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CURRENT & POTENTIAL ISSUES

Given the unprecedented scale of measures taken by the Government, there may be significant
issues and further unforeseeable impact to the construction industry in the near future. We pose
below some of the potential issues relevant within the construction industry.

Disruption to Construction Works

The MCO has caused a disruption to construction works nationwide, and may inevitably cause
delays to construction works. There will be costs overruns, prolongation costs and costs of idling
works, to name a few. Who will be liable for such costs?

Force Majeure | The answer lies in the contract, and whether the situation is addressed either
by a Force Majeure clause or an extension of time (“EOT”) clause, or both.
EOT | JKR, PAM and FIDIC contracts expressly include both Force Majeure and
Prolongation Costs |
EOT clauses in their agreements. In essence, these contracts state that an
extension of time shall be granted where construction works are likely to be
delayed by a Force Majeure event. These contracts define a Force Majeure
event as an event beyond the control of both parties, preventing them from
performing their contractual obligations. Such language may give the
implication that the current COVID-19 epidemic is indeed caught under the
Force Majeure clause. Hence, where this is the case, extension of time shall
be granted, and no parties could claim against each other for any loss and
expense which have arisen due to the delay of works during this MCO
period.

However, what happens when the contract provisions do not address the
Frustration |
current situation? In the KKM Guidelines, the Government states that it may
Termination | still rely on the principle and procedure of Force Majeure. Nevertheless, this
may go against the very essence of the contract. It is thus arguable that
where contracts are silent, other alternatives may offer protection to the
parties, especially if the MCO is extended for a prolonged period, such as
frustration and the right to terminate the contract.

Enforceability of Ministry Guidelines

Whilst it is understood from the Prime Minister’s speech on 16.3.2020 that all government and
private premises must be closed during the MCO period (unless involved in “essential services”),
such an intention was not explicitly reflected in the PCID Regulations 2020. Instead, according to
NSC Statement, it is to be inferred from Section 5 of PCID Regulations 2020 which provide the
following :-

• Any premises providing essential services may be opened provided staff kept at a minimum;
• Any premises not providing essential services may be opened provided a written permission
to the effect has been obtained from the Director General of the Ministry of Health; and

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• Any premises involved in food supply chain may be opened subject to any conditions to be
imposed by the Director General.

Initially, the Guidelines (FAQs or Statement) issued by the ministries

Enforceability | appeared to provide mere guidance on the approach the Government would
be taking in the implementation of the PCID Regulations 2020 and the MCO.
However, as discussed above, by providing definitions and imposing further
rules and exceptions, these guidelines may have gone further than providing
mere guidance.

For example, the PCID Regulations 2020 only allow essential services to
operate. In contrast, the NSC Statement and KKR Guidelines clarify that
Inconsistencies | certain components of non-essential services are allowed to operate and
provide further exceptions to the MCO. In addition to the inconsistencies
between the PCID Regulations 2020 and the Guidelines, there are also
inconsistencies among the Guidelines themselves. As highlighted earlier, the
NSC provide that construction industries must obtain the approval of both
JKR and DOSH to operate critical works. The KKR Guidelines however, do
not require such dual approvals; they only require the approval of one of the
persons listed in the KKR Guidelines (as discussed in page 2 above).

Judicial Review | The inconsistencies between the Guidelines issued by the various ministries
has somewhat created uncertainties over the interpretation of the PCID
Regulations 2020, which may well lead to disputes. In this regard, it is also
unclear whether the Guidelines are enforceable to begin with. Unless the
PCID Regulations 2020 are amended, given the uncertainty, the PCID
Regulations 2020 along with any of the various Guidelines issued by the
ministries, may be open to challenges by way of judicial review.

Contractors Whose Works are ‘Important’ to the Operation of

Companies Providing Essential Services
As regards those companies not providing essential services, but whose works are important to
the performance of another company which provides essential services, it is generally
understood that in principle, they will not be allowed to operate including at the client’s site.
However, on a case by case basis, they may be able to obtain permission to operate where their
works are necessary for the safety and/or continuation of the relevant essential services. This
may give rise to several issues:

For example, in a situation where a contractor has been appointed to provide

Critical Works | operation & maintenance to a power plant (the owner of the power plant
falling squarely within the ambit of providing essential services), it is arguable
that works related to Schedule Outages do not fall within the definition of
critical works (as defined under KKR’s Guidelines).

In this regard, if there is a forced outage (and it is discovered that the forced
Loss & Damages | outage was caused by defects that could have been identified and rectified
during the scheduled outage) would the owner be entitled to claim for
damages and/or losses suffered from the operation & maintenance
contractor? In the event the contract is silent on this, it would be interesting
to see how courts or arbitrators decide where the equities lie.

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WAY FORWARD

The difficulties the construction industry are facing now and will continue to face in the near
future, are unprecedented. Such adversity will only be increased if the MCO is extended.
Arguments in relation to the MCO may be a mainstay in the commercial or construction courts
for a few years, as well as in arbitrations globally.

Particularly in Malaysia, the adversities faced by the construction industry may be exacerbated
by the inconsistencies between; (a) the PCID Regulations 2020 and the various guidelines; (b)
the various guidelines issued by the different ministries; and (c) the guidelines issued by the
Federal Government and State Governments.

Accordingly, to minimise disputes, it may be advisable for the Government to clarify and/or rectify
the inconsistencies surrounding the MCO, by making the necessary amendments to the PCID
Regulations 2020. Construction players are also advised to identify potential issues to their
projects at the earliest stage possible to mitigate the potential losses they may suffer, especially
should the MCO be extended further.

For further queries, please contact the authors.

ABOUT THE AUTHORS

Dato’ Nitin Nadkarni ([email protected]) is the Head of Energy, Infrastructure & Projects, and
International Arbitration Practice Group. Nitin has been in practice for over 35 years, and
has appeared in international arbitration as counsel and arbitrator throughout the world.
He is the chairperson of Malaysian Bar Council’s Arbitration Sub-Committee, and sits as
an advisory council member of the Asian International Arbitration Centre. He is also a
panelled arbitrator at the SIAC, AIAC, and ICC, to name a few. Nitin is a Fellow of the
Chartered Institute of Arbitrators, UK, and has been consistently ranked by Chambers &
Partners as well as Legal 500 as a leading lawyer (Band 1).

Abang Mohd Iwawan ([email protected]) is an associate within the Energy, Infrastructure &
Projects, and International Arbitration Practice Group. His main area of practice is in
construction and commercial related disputes, and is the trusted legal advisor for
numerous prominent government-linked entities as well as Fortune Global 500 companies.
He is a Member of the Chartered Institute of Arbitrators, UK, and the current President of
the Young Society of Construction Law, Malaysia. He has appeared as co-counsel in ad-
hoc and institutional rules under leading arbitral institutions such as ICC, AIAC and SIAC.

Anis Raihan Asmadi ([email protected]) is currently undergoing her pupillage and

works closely with Dato’ Nitin and Abang Iwawan on construction-related disputes. Prior
to commencing her pupillage, Anis marshalled with Kuala Lumpur High Court Judge, YA
Darryl Goon. She graduated with a First Class law degree from the University of Reading,
and was called to the Bar of England and Wales in November 2019.

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