Pakistan's FATA Policy

The Federally Administered Tribal Areas (FATA) along the Afghan border, and certain areas within the Northwest Frontier Province (NWFP), are designated as tribal areas and are not subject to normal government jurisdiction. Despite continued efforts, bolstered by repeated military campaigns, the colonial administration retained what was at best a tenuous hold on these areas until the British quit India in 1947. In 1947, at the advent of Pakistan, the Quaid-e-Azam, Mohammad Ali Jinnah, in his sagacity and prophetic vision, withdrew the armed forces from the cantonments around the tribal areas as a gesture of good-will and a first measure towards integration of the tribal areas with the rest of the country.

Soon after Independence, the various tribes in the region entered into an agreement with the government of Pakistan, pledging allegiance to the newly created state. Some 30 instruments of accession were subsequently signed, cementing this arrangement. Accession did not subsume the political autonomy of the tribes. The instruments of accession, signed in 1948, granted the tribal areas a special administrative status. Except where strategic considerations dictated, the tribal areas were allowed to retain their semi-autonomous status, exercising administrative authority based on tribal codes and traditional institutions. This unique system, given varying degrees of legal cover in each of the country's earlier constitutions, was crystallised in Pakistan's Constitution of 1973. To the tribal agencies of Khyber, Kurram, North Waziristan and South Waziristan were later added Mohmand Agency (in 1951), and Bajaur and Orakzai (in 1973).

In the ensuing years the successive governments however decided to leave the tribal areas to their own devices and only minimal social projects were undertaken. In 1971-72 the total developmental budget for six agencies (equivalent of districts) was a paltry Rs. 4.4 million. Thus, for twenty five long years, the tribal areas, 10,500 square miles in extent and with a population of around 4 million were little more than a sociological curiosity. The tribal areas were considered as beyond the pale of Pakistan.

The FATA is governed by an administrative system and a judicial system different from the rest of Pakistan-the Frontier Crimes Regulations (FCR) of 1901. The FCR is a culturally acceptable recognition of the tribal structure of the FATA, where the population is ethnically different from the majority of Pakistan's citizens, and precludes forced assimilation. FATA residents do not have access to national political parties, and political parties are forbidden from extending their activities into the agencies of FATA. The FATA is under the direct executive authority of the President of Pakistan. Laws framed by the National Assembly of Pakistan do not apply in the FATA unless so ordered by the President, who is empowered to issue regulations for the tribal areas. The President's representatives to the FATA, who are called political agents, can punish an entire tribe for crimes committed on the tribe's territory by issuing fines, making arrests, implementing property seizures, and establishing blockades.

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.