But although both the Home Minister and Law Minister also announced their commitment to a Constitutional amendment on the matter253, the government appealed the High Court decision. In August 2022, Malaysia’s Court of Appeal overturned the landmark High Court ruling, declaring in a 2:1 judgment that the relevant provisions of the Constitution specifically refer to the “biological father” and that this term cannot be extended to mean the “mother.”254 The decision was widely deplored. UN experts called on Malaysia’s government to ensure that Malaysian women can enjoy equal rights in relation to nationality and citizenship.255 Family Frontiers successfully filed an application for leave to appeal at the Federal Court. In February 2023, the government announced that it would amend the law so that children of Malaysian women born outside of Malaysia would have the right to citizenship.256 7.4. Discrimination based on race, religion, or ethnicity KEY MESSAGES • International law in relation to discrimination based on race, religion or ethnicity in grant or recognition of nationality has some ambiguities. Nonetheless, while preferential rules on acquisition of nationality may be permissible (within limits), deprivation or denial of nationality on discriminatory grounds is not permitted. • The prohibition of racial discrimination is widely recognised as a “peremptory norm” of international law. • Decisions of the Inter-American and African human rights systems have been particularly strong in their condemnation of both direct and indirect discrimination in relation to nationality law and administration. • Discriminatory denial of nationality may itself sometimes be argued to constitute arbitrary deprivation of nationality. In a majority of countries in the world, the central principle of nationality is that it is based on descent. In most cases, this principle is combined with some rights based on birth in the territory, or accessible naturalisation procedures. However, if nationality law is based exclusively on descent (or nearly so), and access to naturalisation is very limited, the impact is likely to be that nationality law discriminates at least indirectly based on race, ethnicity, or religion. Discrimination is pervasive in the administration of nationality laws, and a major cause of statelessness.257 Moreover, explicit provisions that discriminate on such grounds remain present in several nationality laws globally. There is increasing disquiet at such provisions and practice in nationality law and administration.258 International law is clear that deprivation of nationality on discriminatory grounds is not permitted. Article 9 of the 1961 Convention establishes the specific prohibition that “a Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds.” There is extensive jurisprudence establishing that this prohibition goes well beyond the formal use of grounds for deprivation of nationality in national law. In any discussion of discriminatory provisions, an argument should be considered that discriminatory denial of nationality in itself constitutes arbitrary deprivation of nationality. As early as 1973, in the East African Asians case brought on behalf of “citizens of the UK and colonies” who had been denied the right to enter the UK, the European Commission of Human Rights concluded that: “Govt reiterates intention to amend constitution on child citizenship”, Free Malaysia Today, 3 December 2021, https://www.freemalaysiatoday.com/category/nation/2021/12/03/govt-reiterates-intention-to-amend-constitution-on-child-citizenship/. 253 Ida Lim, ”In 2-1 decision, Court of Appeal Rules Malaysian Mums Cannot Pass Citizenship to Overseas-born Kids,’ Malay Mail, 5 August 2022, https://www. malaymail.com/news/malaysia/2022/08/05/in-2-1-decision-court-of-appeal-rules-malaysian-mums-cannot-pass-citizenship-to-overseas-born-kids/21229; “Malaysia court overturns landmark citizenship ruling for women”, Al Jazeera, 5 August 2022 https://www.aljazeera.com/news/2022/8/5/malaysia-court-overturns-landmark-citizenship-ruling-for-women. 254 “Malaysia: UN Experts Denounce Gender-discriminatory Citizenship Law”, 5 September 2022, https://www.ohchr.org/en/press-releases/2022/09/malaysia-un-experts-denounce-gender-discriminatory-citizenship-law ; “Statement of Working Group on discrimination against women and girls”, United Nations, 21 September 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26659. 255 “UNHCR, Family Frontiers laud Putrajaya’s move to confer automatic citizenship to children born abroad to Malaysian mums”, Malay Mail, 18 February 2023, https://www.malaymail.com/news/malaysia/2023/02/18/unhcr-family-frontiers-laud-putrajayas-move-to-confer-automatic-citizenship-to-children-bornabroad-to-malaysian-mums/55573. 256 Amal de Chickera and Joanna Whiteman, “Addressing Statelessness through the Rights to Equality and Non-Discrimination”, in Solving Statelessness, ed. Laura van Waas and Melanie Khanna (Oisterwijk, The Netherlands: Wolf Legal Publishers, 2017), pp.99–128. 257 E. Tendayi Achiume, Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance: Racial Discrimination in the Context of Citizenship, Nationality and Immigration Status (Geneva: United Nations, 25 April 2018), https://undocs.org/A/HRC/38/52. 258 U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S 67