The Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Bill 2020 was tabled before the House of Representatives of the Malaysian Parliament on 12 August 2020.
 
This summary of the salient features of the aforesaid Bill will proceed on the premise that the Bill will be passed and become law, and hence will be referred to herein as ‘the Act’.
 
As the title suggests, the Act provides for temporary measures to reduce the impact of the Coronavirus Disease 2019 (‘Covid-19’) by modifying the provisions of certain legislation.
 
Enforcement of the Act
 
Save where the date of commencement and period of operation have been provided in the respective provisions in the Act, the Act will come into operation on the date of its publication in the Gazette and will remain in operation for two years thereafter.^[1]
 
The Prime Minister may, by order published in the Gazette, extend the operation of the Act and such power may be exercised more than once.^[2]
 
The Act to prevail in event of inconsistency
 
If there is any conflict or inconsistency between the provisions of the Act and any other written law, the provisions of the Act shall prevail and the conflicting or inconsistent provisions of the other written law shall be deemed to be superseded to the extent of the conflict or inconsistency.^[3]
 
Inability to perform contractual obligations
 
Section 7 of the Act provides that the inability of any party or parties to perform any contractual obligation arising from any of the categories of contracts specified in the Schedule to this Part of the Act (‘Schedule’) due to the measures prescribed, made or taken under the Prevention and Control of Infectious Diseases Act 1988 (‘PCID Act’) to control or prevent the spread of Covid-19 shall not give rise to the other party or parties exercising his or their rights under the contract.
 
The categories of contracts set out in the Schedule are as follows:
 

1. Construction work contract or construction consultancy contract and any other contract related to the supply of construction material, equipment or workers in connection with a construction contract;

2. Performance bond or equivalent that is granted pursuant to a construction contract or supply contract;

3. Professional services contract;

4. Lease or tenancy of non-residential immovable property;

5. Event contract for the provision of any venue, accommodation, amenity, transport, entertainment, catering or other goods or services including, for any business meeting, incentive travel, conference, exhibition, sales event, concert, show, wedding, party or other social gathering or sporting event, for the participants, attendees, guests, patrons or spectators of such gathering or event;

6. Contract by a tourism enterprise as defined under the Tourism Industry Act 1992 and a contract for the promotion of tourism in Malaysia; and

7. Religious pilgrimage-related contract.

The Minister charged with the responsibility for law (‘Minister (Legal Affairs)’) may, by order published in the Gazette, amend the Schedule.^[4]
 
Any dispute in respect of any inability of any party or parties to perform any contractual obligation arising from any of the categories of contracts specified in the Schedule due to the measures prescribed, made or taken under the PCID Act to control or prevent the spread of Covid-19 may be settled by way of mediation.^[5]
 
The Minister (Legal Affairs) is given the power to, inter alia, determine the mediation process, including the appointment and role of a mediator, and the conduct of mediation. Upon conclusion of a mediation and the reaching of an agreement by the parties regarding a dispute, the parties are to sign a written settlement agreement which is binding on the parties.^[6]
 
The Act provides that notwithstanding section 7, any contract terminated, any deposit or performance bond forfeited, any damages received, any legal proceedings, arbitration or mediation commenced, any judgment or award granted and any execution carried out during the period commencing from 18 March 2020 until the date of publication of the Act, shall be deemed to have been validly terminated, forfeited, received, commenced, granted or carried out.^[7]
 
Modification of limitation periods
 
The Act provides that any limitation period specified in the provisions mentioned below which expires during the period from 18 March 2020 to 31 August 2020 shall be extended to 31 December 2020:
 

1. section 6 of the Limitation Act 1953;^[8]

2. paragraphs 1 to 4, 5(a), 8, 10 to 33, 35 to 79, 83 to 88, 90 to 95, 98, 100, 106, 107, 111 and 113 in the Schedule to the Sabah Limitation Ordinance;^[9]

3. paragraphs 1 to 4, 5(a), 8 to 29, 31, 32, 34 to 78, 82 to 94, 96, 98, 100, 106, 107, 111 and 113 in the Schedule to the Sarawak Limitation Ordinance,^[10] and

4. section 2(a) of the Public Authorities Protection Act 1948^.[11]

The above-referred provisions of the Act which extend the limitation periods are deemed to have come into operation on 18 March 2020 and will remain in force until 31 December 2020^.[12]
 
Insolvency Act 1967
 
Section 20 of the Act will prohibit a creditor or creditors from presenting a bankruptcy petition against a debtor under section 2o or 5 of the Insolvency Act 1967, unless the debt owing by the debtor to the petitioning creditor, or if two or more creditors join in the petition the aggregate amount of debts owing to the several petitioning creditors, amounts to RM100,000. This minimum threshold for commencing bankruptcy proceedings has increased from RM50,000.
 
The Act contains a saving provision which provides that any proceedings, actions or other matters required to be done under the Insolvency Act 1967 which are still pending immediately before the date of publication of the Act shall be dealt with under the Insolvency Act 1967 as if the Insolvency Act 1967 had not been modified by the Act^.[13]
 
The modifications of the provisions on insolvency of individuals come into operation on the date of publication of the Act and will remain in force until 31 August 2021. The Minister is given the power (which may be exercised more than once), by order published in the Gazette, to extend the operation of the aforesaid provisions but such extension shall not exceed the period for which the Act remains in operation.^[14]
 
Hire-Purchase Act 1967
 
The Act prohibits an owner from exercising any power to re-possess goods comprised in a hire-purchase agreement under section 16 of the Hire-Purchase Act 1967 for any default of payment of instalment during the period from 1 April 2020 to 30 September 2020.^[15]
 
Notwithstanding the foregoing, any owner who has exercised his power to re-possess the goods comprised in a hire-purchase agreement under section 16 of the Hire-Purchase Act 1967 before the date of publication of the Act, shall be deemed to have validly exercised such power of taking possession of such goods as if the Hire-Purchase Act 1967 had not been modified by the Act.^[16]
 
The above provisions are deemed to have come into operation on 1 April 2020 and will remain in force until 31 December 2020. The Minister is given the power (which may be exercised more than once), by order published in the Gazette, to extend the operation of the aforesaid provisions but such extension shall not exceed the period for which the Act remains in operation.^[17] 
 
Consumer Protection Act 1999
 
The Act amends two provisions in the Consumer Protection Act 1999 as follows:
 

1. by replacing section 24V by modifying the provisions that deal with default in payment of instalments by a purchaser with a provision that: (a) exempts the purchaser from paying late payment charges if he elects to pay the overdue instalments upon his receipt of a notice of default from the credit facility provider; and (b) precludes the credit facility provider from commencing legal proceedings to recover the total outstanding amount if the purchaser fails to make the election under section 24V(2)^[18] – these measures only apply to a credit sale agreement entered into before 18 March 2020 and the purchaser has no overdue instalments before that date;^[19] and

2. by amending section 99(2) to extend the 3-year limitation for filing a claim in the Tribunal for Consumer Claims which expires during the period from 18 March 2020 to 15 June 2020, to 31 December 2020.^[20]

The modification of section 24V(4) of the Consumer Protection Act 1999 to preclude the credit facility provider from commencing legal proceedings to recover the total outstanding amount does not affect any legal proceedings commenced to recover, or any judgment or award obtained for, the outstanding amount payable by the purchaser under the credit sale agreement during the period from 18 March 2020 until the date of publication of the Act.
 
The amendments to the Consumer Protection Act 1999 are deemed to have come into operation on 18 March 2020 and will remain in force until 31 December 2020.
 
Distress Act 1951
 
The Act prohibits a landlord from taking action under section 5(1) of the Distress Act 1951 to recover arrears of rent for the period from 18 March 2020 to 31 August 2020.^[21] This provision applies to all types of premises that is the subject of a tenancy agreement.
 
However, any execution of a warrant of distress for the recovery of rent due to the landlord by a tenant of any premises that has been issued before the date of publication of the Act shall be dealt with under the Distress Act 1951 as if the Distress Act 1951 had not been modified by the Act.^[22]
 
The modifications to the Distress Act 1951 are deemed to have come into operation
on 18 March 2020 and will remain in operation until 31 December 2020.^[23]
 
Housing Development (Control and Licensing) Act 1966
 
The Act introduces the following modifications in relation to agreements entered into before 18 March 2020 in the forms prescribed in Schedules G, H, I and J of the Housing Development (Control and Licensing) Regulations 1989^[24]:
 
Late payment charges
 

1. A developer is precluded from imposing late payment charges in respect of any unpaid instalment if the purchaser’s failure to pay such instalment during the period from 18 March 2020 to 31 August 2020 is due to the measures prescribed, made or taken under the PCID Act to control or prevent the spread of Covid-19;^[25]

2. Upon the application of a purchaser, the Minister may direct the developer to extend the period in which the developer is precluded from imposing late payment charges on the purchaser on the unpaid instalment up to 31 December 2020 if the Minister is satisfied that additional time is required by the purchaser;^[26]

Vacant possession and liquidated damages
 

3. The period from 18 March 2020 to 31 August 2020 shall be excluded from the calculation of: (a) the time for delivery of vacant possession of a housing accommodation; and (b) the liquidated damages for the developer’s failure to deliver vacant possession of a housing accommodation;^[27]

4. The Minister may, upon the developer’s application, grant the developer an extension period of up to 31 December 2020 to deliver vacant possession, if the Minister is satisfied that additional time is required by the developer to deliver vacant possession. Such extension shall have the same effect as the excluded period mentioned in paragraph (3) above;^[28]

5. If the purchaser is unable to take possession of a housing accommodation from the date of service of a notice to take vacant possession from the developer during the period from 18 March 2020 to 31 August 2020 or any extension period referred to in paragraph (4) above, the purchaser shall not be deemed to have taken such vacant possession upon expiry of the developer’s notice to take vacant possession;^[29]

Defect liability period
 

6. The period from 18 March 2020 to 31 August 2020 shall be excluded from the calculation of: (a) the defect liability period; and (b) the time for the developer to carry out works to repair and make good the defects and other faults in a housing accommodation;^[30] and

7. The Minister may, upon the purchaser’s application, by written direction, extend the period referred to in paragraph (6) above up to 31 December 2020 from the calculation of: (a) the defect liability period; and (b) the time for the developer to carry out works to repair and make good the defects and other faults if the Minister is satisfied that additional time is required by the purchaser;^[31]

Housing Tribunal Claim
 

8. Notwithstanding section 16N(2) of the Housing Development (Control and Licensing) Act 1966, if the limitation period for a homebuyer to file a claim in the Tribunal for Homebuyer Claims has expired during the period from 18 March 2020 to 9 June 2020, a homebuyer is entitled to file the claim from 4 May 2020 to 31 December 2020 and the Tribunal shall have jurisdiction to hear such claim.^[32]

The modifications referred to in paragraphs (1) to (7) above shall not affect any legal proceedings commenced, or any judgment or award obtained, to recover late payment charges payable by the purchaser or liquidated damages payable by the developer or any other sum during the period from 18 March 2020 until the date of publication of the Act.^[33]
 
Further, notwithstanding the provisions referred to in paragraphs (1) to (5) above, any late payment charges paid by the purchaser or liquidated damages paid by the developer before the date of publication of the Act shall be deemed to have been validly paid under the Housing Development (Control and Licensing) Act 1966 and its regulations, and such payment shall not be refunded to the payer.^[34]
 
Industrial Relations Act 1967
 
The period from 18 March 2020 to 9 June 2020 is to be excluded from the calculation of the period under the Industrial Relations Act 1967 for according recognition, or notifying a trade union as to the grounds for not according recognition under subsection 9(3), the making of a report in writing to the Director General for Industrial Relations under subsection 9(4) and the filing of representation under subsection 20(1A).^[35] This provision is deemed to have come into operation on 18 March 2020.^[36]
 
Private Employment Agencies Act 1981
 
The Act excludes the period from 18 March 2020 to 9 June 2020 from the calculation of the period for an application to renew a licence under section 11(1) of the Private Employment Agencies Act 1981.^[37] This provision is deemed to have come into operation on 18 March 2020.^[38]
 
Land Public Transport Act 2010 and Commercial Vehicles Licensing Board Act 1987
 
Sections 44, 45, 47 and 48 of the Act introduce provisions that modify the provisions of the Land Public Transport Act 2010 and Commercial Vehicles Licensing Board Act 1987 (collectively ‘Transportation Acts’) to confer discretion on the relevant authorities, upon application of a licensee, to authorise a licensed vehicle to be used as a public service vehicle of another category or class. For example, authorisation may be given for a tourism vehicle to be used for public transportation. The application must be accompanied by additional insurance coverage for the vehicle.
 
Any authorisation given for a change of use is for a maximum duration of 12 months and may be subject to conditions.
 
The provisions in the Act that modify the Transportation Acts are deemed to have come into operation on 1 August 2020 and will remain in force until 31 December 2021.^[39]
 
The Minister of Transport is conferred power (which may be exercised more than once), by order published in the Gazette, to extend the operation of the aforesaid provisions but such extension shall not exceed the period for which the Act remains in operation.^[40] 
 
Courts of Judicature Act 1964 and Subordinate Courts Act 1948
 
The Act introduces the following new provisions to the Courts of Judicature Act 1964 and Subordinate Courts Act 1948 that enable the Chief Justice to:
 

1. issue any direction in relation to the business of the Court as may be necessary if the Chief Justice is of the opinion that the circumstances warrant and it is necessary in the interest of the dispensation of justice, public safety, public security, public health or propriety or for other sufficient reason;^[41] and

2. modify or suspend the operation of any provision of the rules of court as is necessary for doing complete justice in any matter pending before the Court and to ensure that the administration of justice is carried out if the Chief Justice is of the opinion that the circumstances warrant and it is necessary in the interest of the dispensation of justice, public safety, public security, public health or propriety or for other sufficient reason.^[42]

The Act also modifies the provisions of the Courts of Judicature Act 1964 to:
 

1. enable the Chief Justice to provide alternative arrangements for meetings if the Chief Justice is of the opinion that it is not possible to convene, hold or conduct any meeting required under that Act;^[43] and

2. dispense with the requirement to convene the Council of Judges for at least one meeting in a year.^[44]

The modifications to the Courts of Judicature Act 1964 and Subordinate Courts Act 1948 are deemed to have come into operation on 18 March 2020 and will continue in force until the expiry of two years from the date of publication of the Act.^[45]
 
Miscellaneous
 
Extension of time to perform statutory duty or obligation
 
The Act provides that the Minister charged with responsibility for any Act may, if the Minister is of the opinion that it is not possible for any authority to perform any statutory duty or obligation within the time stipulated in the relevant Act during the period from 18 March 2020 to 9 June 2020 due to measures prescribed, made or taken under the PCID Act to control or prevent the spread of Covid-19, by order published in the Gazette, extend the time for the authority to perform such statutory duties or obligations.^[46] Such order may be made to operate retrospectively to any date which is not earlier than 18 March 2020.^[47]
 
Alternative arrangements for statutory meeting
 
The Act provides that the Minister charged with responsibility for any Act may, if the Minister is of the opinion that it is not possible for any statutory meeting to be convened, held or conducted in the manner provided in that Act during the period from 18 March 2020 to 9 June 2020 due to measures prescribed, made or taken under the PCID Act to control or prevent the spread of Covid-19, by order published in the Gazette, provide for alternative arrangements for such meeting.^[48]
 
The Act also contains a saving provision which provides that any statutory meeting convened, held or conducted not in the manner provided for in any Act regulating such statutory meeting on or after 18 March 2020 and before the making of the order referred to in the preceding paragraph, shall be deemed to have been validly convened, held or conducted.^[49]  
 
The provisions in the Act relating to the performance of statutory duties or obligations and the convening, holding and conduct of statutory meetings are deemed to have come into operation on 18 March 2020.^[50]
 
Comments
 
Although it is presently contemplated that the Act will remain in operation for two years from the date of its publication in the Gazette, the Act contains some in-built flexibilities that enable the Government to extend the duration of the Act, and of certain provisions therein, if circumstances warrant such extension.
 
However, due to the long lapse of time between the implementation of the movement control order in Malaysia on 18 March 2020 and the date on which the Act will come into operation^[51], the Act preserves the validity of certain actions initiated, such as legal proceedings commenced, and judgments obtained, before the Act comes into operation. As the Act has yet to be passed and enforced, this gives an opportunity for parties to preserve or enforce their existing rights by taking action expeditiously before the Act comes into operation. This may result in a deluge of proceedings being commenced in the immediate future and significantly nullify the objectives of the Act.
 
As regards the provisions on inability to perform contractual obligations, the Government will have to introduce further legislation (possibly subsidiary legislation) to put in place the mediation procedures contemplated under those provisions.