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 KPK 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 KPK 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 KPK Governor 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, characterized 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, undated).
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 councilors 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 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, 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 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 neighboring agencies or FRs.
Although the jirga mechanism enjoys widespread favor, 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 favor the richer or more influential party.