Under the Constitution, FATA is
included among the “territories” of Pakistan (Article 1). It is
represented in the National Assembly and the Senate but
remains under the direct executive authority of the
President (Articles 51, 59 and 247). Laws framed by the
National Assembly do not apply here unless so ordered by the
President, who is also empowered to issue regulations for
the “peace and good government” of the tribal areas. Today,
FATA continues to be governed primarily through the Frontier
Crimes Regulation 1901. It is administered by Governor of
the NWFP in his capacity as an agent to the President of
Pakistan, under the overall supervision of the Ministry of
States and Frontier Regions in Islamabad (Khan, 2005).
Until 2002, decisions related to
development planning in the tribal areas were taken by the
FATA section of the NWFP planning and development
department, and implemented by government line departments.
In that year, a FATA Secretariat was set up, headed by the
Secretary FATA. Four years later, in 2006, the Civil
Secretariat FATA was established to take over
decision-making functions, with an Additional Chief
Secretary, four secretaries and a number of directors.
Project implementation is now carried out by line
departments of the Civil Secretariat FATA. The NWFP
Governor’s Secretariat plays a coordinating role for
interaction between the federal and provincial governments
and the Civil Secretariat FATA.
Each tribal agency is administered by
a political agent, assisted by a number of assistant
political agents, tehsildars (administrative head of a
tehsil) and naib tehsildars (deputy tehsildar), as well as
members from various local police (khassadars) and security
forces (levies, scouts). As part of his administrative
functions, the political agent oversees the working of line
departments and service providers. He is responsible for
handling inter-tribal disputes over boundaries or the use of
natural resources, and for regulating the trade in natural
resources with other agencies or the settled areas.
The political agent plays a
supervisory role for development projects and chairs an
agency development sub-committee, comprising various
government officials, to recommend proposals and approve
development projects. He also serves as project coordinator
for rural development schemes.
An FR is administered by the district
coordination officer of the respective settled district, who
exercises the same powers in an FR as the political agent
does in a tribal agency.
Interference in local matters is kept
to a minimum. The tribes regulate their own affairs in
accordance with customary rules and unwritten codes,
characterised by collective responsibility for the actions
of individual tribe members and territorial responsibility
for the area under their control. The government functions
through local-level tribal intermediaries, the maliks
(representatives of the tribes) and lungi holders
(representatives of sub-tribes or clans), who are
influential members of their respective clan or tribe (Shinwari,
All civil and criminal cases in FATA
are decided under the Frontier Crimes Regulation 1901 by a
jirga (council of elders). Residents of the tribal areas
may, however, approach the apex courts (Supreme Court of
Pakistan and Peshawar High Court) with a constitutional writ
challenging a decision issued under the 1901 Regulation.
FATA elects members to the federal legislature through adult
franchise. The system of devolution introduced elsewhere in
the country in 2001 by means of provincial Local Government
Ordinances (LGOs) has not been extended to the tribal areas.
A separate LGO for FATA has been drafted and is awaiting
promulgation. A system of partial local-level governance
does, however, operate through councils in the tribal
agencies and FRs. Elected councillors are involved in
various aspects of development planning and decision making.
FATA is divided into two
administrative categories: ‘protected’ areas are regions
under the direct control of the government, while
‘non-protected’ areas are administered indirectly through
In protected areas, criminal and civil
cases are decided by political officers vested with judicial
powers. After completing the necessary inquiries and
investigations, cognizance of the case is taken and a jirga
is constituted with the consent of the disputing parties.
The case is then referred to the jirga, accompanied by terms
of reference. The jirga hears the parties, examines
evidence, conducts further inquiries where needed, and
issues a verdict which may be split or unanimous. The
political agent, or an official appointed by the political
agent for this purpose, examines the verdict in the presence
of parties to the case and members of the jirga. If the
verdict is found to be contrary to customary law or tainted
with any irregularity, the case may be remanded to the same
jirga for re-examination or the verdict may be rejected and
a fresh jirga constituted. Where the verdict is held to be
in accordance with customary law and free of irregularities,
it is accepted and a decree is issued accordingly. An
aggrieved party may challenge the decree before an appellate
court, and a further appeal may be lodged with a tribunal
consisting of the home secretary and law secretary of the
federal or provincial government. Once appeals are
exhausted, execution of the verdict is the responsibility of
the political administration.
In non-protected areas, cases are
resolved through a local jirga at the agency level. Local
mediators first intervene to achieve a truce (tiga) between
parties in a criminal case, or to obtain security (muchalga)
in cash or kind for civil disputes. Thereafter, parties must
arrive at a consensus concerning the mode of
settlement—arbitration, riwaj (customary law) or Shariah
(Islamic law). Once the mode of settlement is agreed upon,
mediators arrange for the selection of a jirga with the
consent of the parties to the case.
Where arbitration is selected, a jirga
is nominated by consensus and given an open mandate (waak),
with the understanding that its decision will be accepted by
all parties. Here, the decision of the jirga cannot be
challenged. In cases decided according to customary law or
the Shariah, however, an aggrieved party may challenge the
jirga’s decision before another jirga of their own choice.
The new jirga does not hear the case afresh but only
examines the original decision to see whether it deviates
from customary law or the Shariah. Further appeal may be
referred to a third jirga and its decision is final.
Implementation of jirga decisions in non-protected areas is
the responsibility of the tribe. The jirga may mete out
punishment to an offender, imposing a heavy fine.
Occasionally, more serious measures may be taken such as
expelling an individual or a family from the area, and
confiscating, destroying or setting fire to homes and
property. In such cases, the entire tribe bands together as
a lashkar (army) to enforce the decision.
While most disputes are settled
internally, more serious matters may require the calling of
a larger jirga made up of maliks, elders, the political
agent, members of the National Assembly and Senate, and
occasionally even representatives from neighbouring agencies
Although the jirga mechanism enjoys widespread favour,
corruption has begun to enter the system. It is reported
that the poor and more vulnerable segments of society cannot
afford to convene a jirga. There are a number of
requirements for a jirga to be held, including hospitality,
which are increasingly beyond the reach of most ordinary
people. There is also the grievance, now voiced more
frequently, that in most cases jirga decisions favour the
richer or more influential party.