Constitutional Status of FATA
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 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 the Governor of the Khyber Pakhtunkhwa (KP) 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.
Until 2002, decisions related to development planning in tribal areas were taken by the FATA section of the KP Planning and Development Department, and implemented by KP Government line departments. In that year, the FATA Secretariat was set up, headed by the Secretary FATA. Four years later, in 2006, the Civil Secretariat of 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 KP Governor’s Secretariat plays a coordinating role between the Federal and Provincial Governments and the Civil Secretariat, FATA.
The Role of Political Agents
Each tribal agency is administered by a Political Agent (PA), assisted by a number of Assistant Political Agents (APA), 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 use of natural resources, and for regulating trade in natural resources with other agencies or settled areas.
The Political Agent plays a supervisory role for development projects and chairs an agency development sub-committee, comprising of 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 a Deputy Commissioner of the respective settled district, who exercises the same powers in the FR, as the Political Agent does in a tribal agency.
The tribes regulate their own affairs in accordance with customary rules and unwritten codes, characterized by collective responsibility for the actions of individual tribemen and territorial responsibility for the area under their control. The government functions through local-level tribal intermediaries i.e. Maliks (representatives of the tribes) and Lungi-holders (representatives of sub-tribes or clans), who are influential members of their respective clan or tribe.
The Judicial System
The people of FATA elect members to the federal legislature. 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 declaration. A system of municipal committees exists in Parachinar and Sadda (in Kuram Agency) and Miranshah (North Waziristan Agency), which are providing civic services.
All civil and criminal cases in FATA are decided under the Frontier Crimes Regulation 1901 by a jirga (council of elders). Residents of tribal areas may, however, approach the courts (Supreme Court of Pakistan and Peshawar High Court) with a constitutional writ challenging a decision issued under the 1901 Regulation. 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 local tribes.
In protected areas, criminal and civil cases are decided by political officers vested with judicial powers. After completing the necessary inquiries and investigations, a jirga is constituted with the consent of the disputing parties. The case is then referred to the Jirga who issues a verdict, which is examined by the Political Agent. This decision can be appealed against to the High Court and Supreme Court. 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.
While most disputes are settled internally, more serious matters may require the calling of a larger jirga made up of maliks, elders and the Political Agent, members of the National Assembly and Senate, and occasionally even representatives from neighboring agencies or FRs.
25th Constitiutional Amendment
25th Constitiutional amendment like 18th Constitutional amendment which resulted in abolition of concurrent list and devolved 47 subjects to provinces, is a paradigm shift where under Federally Administered Tribal Areas (FATA) stand intergrated with and merged in the province of Khyber Pakhtunkhwa.
2 The executive authority previously exercised by the Governor Khyber Pakhtunkhwa in respect of FATA under Article 247 of the constitution has been done away with. Now being part of the province, the executive authority is shifted to the Chief Minister and his cabinet.The Merged Areas have no longer special status or dispensation .All provincial laws shall equally be applicable to these areas and on mainstreaming of erstwhile FATA due representation (about 16 general seats) shall be given in the Provincial Assembly.
3 Local self-government which could not get roots in the tribal areas due to its peculiar status and nature of governance, will be introduced in the areas at par with rest of the province. The Political authority will be devolved to the grass root level and issues of local level to be resolved by the local bodies representatives.
4 The colonial legacy in the form of political administration under the unbridled powers of Political Agent is no longer there. The office is re- named as Deputy Commissioner and Assistant Commissioner.Similarly, the Century old Frontier Crimes Regulation (FCR) is no more in the field. The tribal people will have fundamental rights guaranteed by the Constitution and of which they were deprived till now. The introduction and presence of criminal and judicial system will ensure their fundamental rights like other citizens of rest of the Country.