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By Megan Darby, CLIMATE HOME, 3 October 2017
The next round of UN climate talks in November was expected to be a fairly technical meeting.
But during a year in which president Donald Trump vowed to pull the US out of the 2015 Paris Agreement, the diplomat who will preside over negotiations reconsidered.
Nazhat Shameem Khan, chief negotiator for Fiji, said she had received a message from countries around the world that the 23rd conference of the parties (COP) needed to be “visionary COP”.
“As the year wore on, it seemed necessary for the COP to restate the vision of Paris. Paris needs to work and we continue to believe in Paris,” she tells Climate Home by phone from Geneva, where she has represented Fiji at the UN since 2014. “Every single outcome from COP23 should be measured against its ability to deliver this vision.”
In Paris, 195 countries agreed to hold global warming “well below 2C” and aim for a 1.5C limit. The Fijian presidency exclusively refers to the tougher 1.5C threshold. This year’s summit, led by Fiji but held for practical reasons in Bonn, Germany, must show a collective determination to put that goal into action, Shameem Khan says.
China and the EU, both mooted as contenders to fill the leadership void left by the US, disagree over the way nations report their progress on cutting emissions. The EU is pushing for universal standards, while China argues that developing countries should be subject to lighter requirements. Shameem Khan says the meeting must bring the sides closer on this tense issue, ready to finalise a framework next year, or risk sending a signal “the world is divided”.
Another core task for COP23 will be designing next year’s “facilitative dialogue”, a political moment for assessing progress (or lack thereof) towards the Paris goals. “Do we need to enhance ambition? We do,” says Shameem Khan.
The Trump administration, representing the world’s second largest emitter of greenhouse gases, is pulling in the opposite direction. It is axing climate funds, reversing climate policies and promising to revive an ailing coal industry.
Under the rules of the Paris Agreement, the US cannot formally exit until 2020. In the meantime, the state department has indicated it will take part in climate talks to “protect ongoing US interests”. Trump is dangling the possibility of re-engaging on terms “more favourable” to the US – widely interpreted as backsliding on commitments made under Barack Obama.
It is a tough backdrop for the first Pacific island nation to preside over the annual summit – and Shameem Khan, a newcomer to the process. “We should be optimistic about the role that the US can play in discussions, whatever they decide to do finally,” she insists.
Every COP presidency uses buzzwords like “inclusive” and “trust”, sometimes linked to a specific cultural tradition. For South Africa, it was indaba. For Fiji, it is talanoa, a Pacific concept of informal storytelling that Shameem Khan says builds empathy and consensus for collective action.
Keeping 197 parties, from petropowers to penniless war zones, on a constructive footing is never easy. Trump’s “America first” stance will stretch talanoa to the limit. Pressed on how she can reconcile Trump’s position with the Paris vision of ratcheting up ambition, Shameem Khan lights on a provocative analogy.
“You can have a dialogue with somebody who is an axe murderer,” she says, swiftly adding that might be a bad example. “Please, let’s just talk. This is how embracing talanoa is.”
The Fijian government Shameem Khan represents is not always so tolerant. Three opposition lawmakers have been suspended for offences as trivial as calling a minister a “fool”. The editor and publisher of the Fiji Times are barred from leaving the country pending trial for sedition over a letter they published.
Prime minister Frank Bainimarama originally came to power in a 2006 bloodless coup, the fourth overthrow of government in two decades. The former navy chief cemented his leadership with an election in 2014, which international observers deemed credible.
Still, complaints of media suppression and human rights abuses crop up. Last year, Amnesty International reported a culture of police torture the government had failed to stamp out. Underlying tensions between indigenous Fijians and a sizeable ethnic Indian minority – to which Shameem Khan belongs – persist.
Shameem Khan’s role in the 2006 coup, as a high court judge at the time, is the most controversial episode of her career. Critics accuse her of legitimising the military intervention, which she denies. Rather, as the second most senior judge in the country at the time, she says she was honouring a prior agreement among the judiciary to keep the courts functioning through any such crisis.
Declining to comment on specific cases, Shameem Khan says: “I am actually very proud of Fiji’s human rights record. I think we have a very strong constitution… Education is now free for the first time in our history. These are enormous achievements, which many countries have not achieved yet.”
Bonn COP23 climate talks
When? 6-17 November, 2017
Where? Bonn, Germany
What? A meeting of 197 parties to the UN Framework Convention on Climate Change, where the implementation of the Paris climate agreement will be the major point of negotiations.
Our team will be watching everything, not just Donald Trump news! How to keep up? Sign up to Climate Home’s newsletter, Facebook and Twitter feeds for the most in-depth, dedicated reporting from this critical meeting.
The lawyer-turned-diplomat is at her most animated when talking about sexism. When she took a job, aged 22, in Fiji’s public prosecutions office, she recalls there were posters on the walls of scantily clad women draped over cars.
Shameem Khan had an uphill struggle to be taken seriously, becoming the first woman to direct that office and then Fiji’s first female high court judge. And she offered a hand up to the women behind her.
“A woman has this incredible duty to transform when she is in a position of empowerment herself,” she says. “Because she knows what it is like to be the underdog… when she arrives herself at a position of empowerment, she must look around the workplace and say: ‘this is not going to happen on my watch’.”
As director of public prosecutions, it meant revamping the recruitment process so no female applicant was asked about her marital status or family plans.
At the climate summit, she is championing the launch of a gender action plan. This, Shameem Khan is determined, will have influence over the core negotiations. “The worst thing about any new platform or plan is when it is tucked away in a corner and is just platitudes,” she says.
Just as women may find themselves talked over in meetings, Fiji – population 900,000 – can struggle to be heard in the great game of geopolitics. But when it comes to climate change, they speak from hard-earned experience. Their vulnerability to sea level rise, intensifying tropical storms and drinking water scarcity makes them authoritative advocates for higher ambition.
In Fiji, entire villages are moving to higher ground, beyond the reach of increasingly frequent coastal flooding. Pacific neighbours like the Marshall Islands, its highest point 10 metres above sea level, don’t have that option.
“We are going to bring to the negotiations the sense of urgency that the Pacific islands know,” says Shameem Khan. “People are really worried about the way things are going.”
Urgency means, Bainimarama said in his recent speech to the UN general assembly, fixing 1.5C as the upper limit on global warming. It’s an ambitious – and many scientists believe unattainable – goal; the mercury has already risen by 1C since the start of the industrial revolution.
At the same time, the presidency is responsible for brokering compromise between diverse interests. Its advocacy is necessarily tempered with pragmatism.
“We understand that the presidency is there for everybody,” says Shameem Khan. “We cannot put the Pacific over the priorities of any other region.”
Their approach to “loss and damage”, the strand of talks on impacts of climate change beyond what people can adapt to, is illustrative of the balance. It is a contentious issue, with vulnerable countries desperate for financial support but industrialised countries refusing to accept liability.
Bainimarama and Shameem Khan use their platform to highlight damage already caused to people’s lives and livelihoods by extreme weather linked to climate change. They trail the launch of an insurance initiative to help communities bounce back from such events. But they steer clear of more radical proposals from Pacific civil society to make polluters pay.
Keeping the Paris “vision” alive in the face of US regression will require all the technical nous and political savvy Shameem Khan can muster.
“This is quite an enormous undertaking,” she says. “I have not really come across anything quite as complex and all-embracing as this. I am totally aware of this enormous responsibility that Fiji has taken on.
“We cannot change the world on our own [but] in this exercise, we have an opportunity to work with the world on something that is important for all of us.”
The next round of UN climate talks in November was expected to be a fairly technical meeting.
But during a year in which president Donald Trump vowed to pull the US out of the 2015 Paris Agreement, the diplomat who will preside over negotiations reconsidered.
Nazhat Shameem Khan, chief negotiator for Fiji, said she had received a message from countries around the world that the 23rd conference of the parties (COP) needed to be “visionary COP”.
“As the year wore on, it seemed necessary for the COP to restate the vision of Paris. Paris needs to work and we continue to believe in Paris,” she tells Climate Home by phone from Geneva, where she has represented Fiji at the UN since 2014. “Every single outcome from COP23 should be measured against its ability to deliver this vision.”
In Paris, 195 countries agreed to hold global warming “well below 2C” and aim for a 1.5C limit. The Fijian presidency exclusively refers to the tougher 1.5C threshold. This year’s summit, led by Fiji but held for practical reasons in Bonn, Germany, must show a collective determination to put that goal into action, Shameem Khan says.
China and the EU, both mooted as contenders to fill the leadership void left by the US, disagree over the way nations report their progress on cutting emissions. The EU is pushing for universal standards, while China argues that developing countries should be subject to lighter requirements. Shameem Khan says the meeting must bring the sides closer on this tense issue, ready to finalise a framework next year, or risk sending a signal “the world is divided”.
Another core task for COP23 will be designing next year’s “facilitative dialogue”, a political moment for assessing progress (or lack thereof) towards the Paris goals. “Do we need to enhance ambition? We do,” says Shameem Khan.
The Trump administration, representing the world’s second largest emitter of greenhouse gases, is pulling in the opposite direction. It is axing climate funds, reversing climate policies and promising to revive an ailing coal industry.
Under the rules of the Paris Agreement, the US cannot formally exit until 2020. In the meantime, the state department has indicated it will take part in climate talks to “protect ongoing US interests”. Trump is dangling the possibility of re-engaging on terms “more favourable” to the US – widely interpreted as backsliding on commitments made under Barack Obama.
It is a tough backdrop for the first Pacific island nation to preside over the annual summit – and Shameem Khan, a newcomer to the process. “We should be optimistic about the role that the US can play in discussions, whatever they decide to do finally,” she insists.
Every COP presidency uses buzzwords like “inclusive” and “trust”, sometimes linked to a specific cultural tradition. For South Africa, it was indaba. For Fiji, it is talanoa, a Pacific concept of informal storytelling that Shameem Khan says builds empathy and consensus for collective action.
Keeping 197 parties, from petropowers to penniless war zones, on a constructive footing is never easy. Trump’s “America first” stance will stretch talanoa to the limit. Pressed on how she can reconcile Trump’s position with the Paris vision of ratcheting up ambition, Shameem Khan lights on a provocative analogy.
“You can have a dialogue with somebody who is an axe murderer,” she says, swiftly adding that might be a bad example. “Please, let’s just talk. This is how embracing talanoa is.”
The Fijian government Shameem Khan represents is not always so tolerant. Three opposition lawmakers have been suspended for offences as trivial as calling a minister a “fool”. The editor and publisher of the Fiji Times are barred from leaving the country pending trial for sedition over a letter they published.
Prime minister Frank Bainimarama originally came to power in a 2006 bloodless coup, the fourth overthrow of government in two decades. The former navy chief cemented his leadership with an election in 2014, which international observers deemed credible.
Still, complaints of media suppression and human rights abuses crop up. Last year, Amnesty International reported a culture of police torture the government had failed to stamp out. Underlying tensions between indigenous Fijians and a sizeable ethnic Indian minority – to which Shameem Khan belongs – persist.
Shameem Khan’s role in the 2006 coup, as a high court judge at the time, is the most controversial episode of her career. Critics accuse her of legitimising the military intervention, which she denies. Rather, as the second most senior judge in the country at the time, she says she was honouring a prior agreement among the judiciary to keep the courts functioning through any such crisis.
Declining to comment on specific cases, Shameem Khan says: “I am actually very proud of Fiji’s human rights record. I think we have a very strong constitution… Education is now free for the first time in our history. These are enormous achievements, which many countries have not achieved yet.”
Bonn COP23 climate talks
When? 6-17 November, 2017
Where? Bonn, Germany
What? A meeting of 197 parties to the UN Framework Convention on Climate Change, where the implementation of the Paris climate agreement will be the major point of negotiations.
Our team will be watching everything, not just Donald Trump news! How to keep up? Sign up to Climate Home’s newsletter, Facebook and Twitter feeds for the most in-depth, dedicated reporting from this critical meeting.
The lawyer-turned-diplomat is at her most animated when talking about sexism. When she took a job, aged 22, in Fiji’s public prosecutions office, she recalls there were posters on the walls of scantily clad women draped over cars.
Shameem Khan had an uphill struggle to be taken seriously, becoming the first woman to direct that office and then Fiji’s first female high court judge. And she offered a hand up to the women behind her.
“A woman has this incredible duty to transform when she is in a position of empowerment herself,” she says. “Because she knows what it is like to be the underdog… when she arrives herself at a position of empowerment, she must look around the workplace and say: ‘this is not going to happen on my watch’.”
As director of public prosecutions, it meant revamping the recruitment process so no female applicant was asked about her marital status or family plans.
At the climate summit, she is championing the launch of a gender action plan. This, Shameem Khan is determined, will have influence over the core negotiations. “The worst thing about any new platform or plan is when it is tucked away in a corner and is just platitudes,” she says.
Just as women may find themselves talked over in meetings, Fiji – population 900,000 – can struggle to be heard in the great game of geopolitics. But when it comes to climate change, they speak from hard-earned experience. Their vulnerability to sea level rise, intensifying tropical storms and drinking water scarcity makes them authoritative advocates for higher ambition.
In Fiji, entire villages are moving to higher ground, beyond the reach of increasingly frequent coastal flooding. Pacific neighbours like the Marshall Islands, its highest point 10 metres above sea level, don’t have that option.
“We are going to bring to the negotiations the sense of urgency that the Pacific islands know,” says Shameem Khan. “People are really worried about the way things are going.”
Urgency means, Bainimarama said in his recent speech to the UN general assembly, fixing 1.5C as the upper limit on global warming. It’s an ambitious – and many scientists believe unattainable – goal; the mercury has already risen by 1C since the start of the industrial revolution.
At the same time, the presidency is responsible for brokering compromise between diverse interests. Its advocacy is necessarily tempered with pragmatism.
“We understand that the presidency is there for everybody,” says Shameem Khan. “We cannot put the Pacific over the priorities of any other region.”
Their approach to “loss and damage”, the strand of talks on impacts of climate change beyond what people can adapt to, is illustrative of the balance. It is a contentious issue, with vulnerable countries desperate for financial support but industrialised countries refusing to accept liability.
Bainimarama and Shameem Khan use their platform to highlight damage already caused to people’s lives and livelihoods by extreme weather linked to climate change. They trail the launch of an insurance initiative to help communities bounce back from such events. But they steer clear of more radical proposals from Pacific civil society to make polluters pay.
Keeping the Paris “vision” alive in the face of US regression will require all the technical nous and political savvy Shameem Khan can muster.
“This is quite an enormous undertaking,” she says. “I have not really come across anything quite as complex and all-embracing as this. I am totally aware of this enormous responsibility that Fiji has taken on.
“We cannot change the world on our own [but] in this exercise, we have an opportunity to work with the world on something that is important for all of us.”
"Shameem Khan’s role in the 2006 coup, as a high court judge at the time, is the most controversial episode of her career. Critics accuse her of legitimising the military intervention, which she denies. Rather, as the second most senior judge in the country at the time, she says she was honouring a prior agreement among the judiciary to keep the courts functioning through any such crisis." Megan Darby, 3 October 2017
TEN YEARS ON! Victor Lal: "On 5 March 2007, under my byline, I had revealed in the Fiji Sun of 5 March 2007 the Minutes of the 15 January 2007 meeting of the Judicial Services Commission (“the Commission”) chaired by Justice Nazhat Shameem. It was this meeting that appointed Justice Gates as Acting Chief Justice. In a subsequent commentary, I argued that she had made the right decision. A decade later I stand by it. I had suggested that there would be occasions in extreme circumstances such as a revolution where it is necessary in the interests of public order for a court, sitting to determine the status of a revolutionary government, to override claims that it lacks jurisdiction. This approach, I pointed out, was the approach at least implicit in the Rhodesian judgments of Justices MacDonald and Fieldsend in Madzimbamuto and CJ Beadle in Ndhlovu. For example, Justice MacDonald said: 'The municipal courts, unlike a foreign government, cannot wait upon events. The function of courts of law within a territory is to maintain law and order and to avoid by every possible means anarchy, chaos, or uncertainty, or uncertainty and this is an urgent talk.'"
In another separate article - Justice Coventry accused of denigrating judges - He was told to “hang your head in shame” for comments, I had returned to that 15 January 2007 Minutes:
On 4 January 2007, a meeting was held in the Judges’ Common Room in Suva, which was chaired by Justice Gordon Ward, president of the Fiji Court of Appeal. Some judges were absent including Justice Gates, who was out of the country. At this meeting, there was discussion about the absence of the Chief Justice Fatiaki and the legal and constitutional basis for it.
On 3 January 2007 he had been asked to go on leave by the military.
The summary of the minutes of the meeting, written down by Justice Ward from memory and circulated to his fellow judges, reveals that it was agreed that, “The Courts should continue to sit and to be administered in the same manner as before the military takeover on 5 December 2006 and the Chief Justice’s agreement to go on leave”.
Their duty as judges was to ensure the Courts continued to function for the public. Justice Ward had however expressed concern at the meeting that the military was making orders in relation to the internal administration of justice. Concern was also expressed at the manner of Justice Fatiaki’s removal, with one local judge suggesting that they should state their opinion that this step was unconstitutional and was concerned that a failure to do so could leave the public with the view that the judiciary had accepted it. A consequence of that could be to suggest the judiciary had no independence, he noted.
At the meeting, two Court of Appeal judges discussed possible methods of appointing an Acting Chief Justice, for which they said there was a need. In the course of the meeting Justice Ward suggested that the Judicial Services Commission be bypassed and that if executive power was returned to President Iloilo, it may be possible for him (the President) to make an acting appointment in order to overcome this impasse, and on the basis of a consensus of judges.
It was agreed that a further meeting be held to include the absent judges on Monday the 15 January 2007. The meeting ended at 12.30. At 3pm Cdre Bainimarama announced that he had returned executive powers to the President.
On 5 January 2007 the acting Chief Registrar was called to the Military Strategic Command and told that the interim arrangements of the Chief Justice to appoint Justice Ward to administer the judiciary were to be disregarded. Another judge told a fellow judge the next day that the meeting of the judges of 4 January 2007 was in breach of the Memorandum of Understanding agreed to by the High Court judges in 2002, and that in his opinion the judges had learnt nothing from the crisis of 2000.
He told his fellow judge that he had spoken to Justices Ward and Winter and had warned them to refrain from expressing any views about the legality or legitimacy of the new political order in Fiji. As a result of the strong views expressed by the judge, there were no further meetings of the judges.
On 7 December, two days after the coup, the then CJ Fatiaki called for a meeting of the High Court judges at the Fijian Hotel, where the judges had been attending a judicial conference since 4 December, to discuss the post-coup situation. It has emerged that Justice Gates had refused to attend the meeting on the ground that there was a real risk that judges would compromise themselves from hearing future constitutional litigation.
On 15 January 2007 the Interim Attorney-General Aiyaz Khaiyum called Justice Nazhat Shameem saying that he was calling her, as she was the most senior judge of the High Court at the time after the CJ.
He advised her that he had a discussion with the then President of the Fiji Law Society Devanesh Sharma about the need to appoint acting CJ. Sharma went along with Shameem and others in the appointment of Justice Gates as acting Chief Justice of Fiji.
The rest is history, as I have pointed out in a previous article, and based on the minutes of the Judicial Services Commission, how Justice Gates came to be appointed in his current position.
In any case, as president of the FCA, Justice Ward could not have also constitutionally acted as Chief Justice.
On 3 January 2007 he had been asked to go on leave by the military.
The summary of the minutes of the meeting, written down by Justice Ward from memory and circulated to his fellow judges, reveals that it was agreed that, “The Courts should continue to sit and to be administered in the same manner as before the military takeover on 5 December 2006 and the Chief Justice’s agreement to go on leave”.
Their duty as judges was to ensure the Courts continued to function for the public. Justice Ward had however expressed concern at the meeting that the military was making orders in relation to the internal administration of justice. Concern was also expressed at the manner of Justice Fatiaki’s removal, with one local judge suggesting that they should state their opinion that this step was unconstitutional and was concerned that a failure to do so could leave the public with the view that the judiciary had accepted it. A consequence of that could be to suggest the judiciary had no independence, he noted.
At the meeting, two Court of Appeal judges discussed possible methods of appointing an Acting Chief Justice, for which they said there was a need. In the course of the meeting Justice Ward suggested that the Judicial Services Commission be bypassed and that if executive power was returned to President Iloilo, it may be possible for him (the President) to make an acting appointment in order to overcome this impasse, and on the basis of a consensus of judges.
It was agreed that a further meeting be held to include the absent judges on Monday the 15 January 2007. The meeting ended at 12.30. At 3pm Cdre Bainimarama announced that he had returned executive powers to the President.
On 5 January 2007 the acting Chief Registrar was called to the Military Strategic Command and told that the interim arrangements of the Chief Justice to appoint Justice Ward to administer the judiciary were to be disregarded. Another judge told a fellow judge the next day that the meeting of the judges of 4 January 2007 was in breach of the Memorandum of Understanding agreed to by the High Court judges in 2002, and that in his opinion the judges had learnt nothing from the crisis of 2000.
He told his fellow judge that he had spoken to Justices Ward and Winter and had warned them to refrain from expressing any views about the legality or legitimacy of the new political order in Fiji. As a result of the strong views expressed by the judge, there were no further meetings of the judges.
On 7 December, two days after the coup, the then CJ Fatiaki called for a meeting of the High Court judges at the Fijian Hotel, where the judges had been attending a judicial conference since 4 December, to discuss the post-coup situation. It has emerged that Justice Gates had refused to attend the meeting on the ground that there was a real risk that judges would compromise themselves from hearing future constitutional litigation.
On 15 January 2007 the Interim Attorney-General Aiyaz Khaiyum called Justice Nazhat Shameem saying that he was calling her, as she was the most senior judge of the High Court at the time after the CJ.
He advised her that he had a discussion with the then President of the Fiji Law Society Devanesh Sharma about the need to appoint acting CJ. Sharma went along with Shameem and others in the appointment of Justice Gates as acting Chief Justice of Fiji.
The rest is history, as I have pointed out in a previous article, and based on the minutes of the Judicial Services Commission, how Justice Gates came to be appointed in his current position.
In any case, as president of the FCA, Justice Ward could not have also constitutionally acted as Chief Justice.
