According to Article 5 of Federal Constitution, provided:
“Any person cannot deprived of his personal liberty unless it is provided by law”
Meanwhile according to article 3 of Federal constitution, provided,
“Islam is the federal religion but others religion are free to practice their religion in harmonize.”
In Malaysia, regarding to the Muslims matters is governed by State. Therefore, every state has power to enact laws or provisions regarding to Muslims matters. There is also having many various enactments which are provided to govern the Muslims matters in different states.
In respect of female posing like man, there is no provision in the enactment to Sharie Public Prosecutor (SPP) or Religious Enforcement Officer (REO) to charge the female who posing like man. That is mean; there is a lacuna in our law. Since there is no provision, SPP or REO cannot charge the woman who posing likes man. Unlike man posing like female as it was enacted under Shariah Criminal Offence Selangor Enactment (SCOSE).
According to Section 31 of (SCOSE), it is provided, the indecent manner which is contrary to the Islamic Law shall be guilty for an offence. The word of indecent manner gives us wide interpretations. And maybe, it is also including a person who wearing inappropriate prohibited by Islamic Law. But we cannot interpret the section without any legal basis.
According to section 2 of (SCOSE), Islamic Law means Islamic law according to any recognized mazhab.
In Malaysia, Fatwa Department is a department issued a formal legal opinion regarding to current issues (Muslims matters) based on recognized mazhab. And the fatwa can be applied to fill in the provision which has lacuna since it is gazette.
Note: basically, fatwa in Malaysia is binding not in its capacity but as its legal instrument. It is according to section 49(1) of Administration of the Religion Islam Selangor. Besides that, since fatwa is gazette, it’s binding among the Muslims to follow it.
In respect of female posing like man, Fatwa National Committee of Malaysia Islamic Religious gives the fatwa and its gazette:
“Tomboy or female posing like man is forbidden in Islam”.
Therefore, the Fatwa Department of Selangor can adopt the fatwa given by Fatwa National Committee Islamic Religious according to section 52(1) of Administration of the Religion Islam Selangor.
The conclusion, regarding to female posing like man issue, REO can apply the fatwa in order to charge who posing like man since she is a female.