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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, 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 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 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’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 or FRs.
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.
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