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The State of Bahia: Introductory Note

Philip Raworth
Edited By: Philip Raworth

© 2017 Oxford University Press

Bahia is one of the twenty-six states of Brazil. It is the fifth largest state after São Paulo, Minas Gerais and Rio de Janeiro with a surface area of 565,733 square kilometers (218,431 square miles) and the fourth largest in population with, as of 2015, 15,203,934 inhabitants. Bahia is located in the northeast of Brazil on the Atlantic coast. It is bordered on the north by the states of Piaui and Pernambuco, on the east by Sergipi and the Atlantic Ocean, on the south by the states of Minais Gerais and Esplritu Santo and on the west by the states of Golas and Tocantins. The capital of the state is Salvador.

Bahia was claimed for the Portuguese Crown by Pedro Cabral in 1500. The city of Salvador was founded in 1549 and served as the capital of Portugal’s American colonies until 1763. Bahia was briefly occupied by the Dutch from 1624 to 1625. After Don Pedro, the son of the Portuguese King, declared the independence of Brazil with himself as Emperor on September 7, 1822, the Bahian elite remained loyal to the Portuguese Crown and it was not until 1823 that Bahia became part of the new Empire of Brazil. It became a state of the Republic of Brazil in 1889.

Legislative Power

The Constitution of the State of Bahia invests the legislative power of the State in the Legislative Assembly, which is composed of sixty-three deputies elected by proportional representation for a term of four years. The Assembly cannot be dissolved before the end of its term either by itself or by the Governor. Unless there is a constitutional provision to the contrary, the Legislative Assembly operates in public sittings and in the presence of a third, at a minimum, of its members, and its decisions are taken by a majority vote in the presence of an absolute majority of its members.

Apart from its right to supervise and verify the actions of the Executive, the Legislative Assembly is empowered, with the approval of the Governor and in accordance with the State Constitution, to legislate on all the matters within the jurisdiction of the State, in particular on:

  • –  the multiannual plan, budgetary guidelines and annual budgets;

  • –  State and sectoral plans and programs of economic and social development;

  • –  temporary transfer of the seat of the Government;

  • –  boundaries of the State territory and assets under the control of the State as well as the creation, merger, incorporation, dismantling and elimination of municipalities and setting their boundaries;

  • –  credit operations, public debt and issue of treasury bonds;

  • –  creation, transformation and elimination of offices, positions and public functions, and fixing the respective salaries and remunerations;

  • –  administrative and judicial organization of the Justice Department, the prosecutors’ offices, the Public Defender’s Office and the Courts of Accounts;

  • –  organization, establishment and modification of the contingent of the Military Police and the Military Fire Brigade;

  • –  creation, structuring and powers of the State Secretariats and the other bodies and entities of the direct and indirect public administration;

  • –  authorization for selling or charging immovable assets of the State;

  • –  concessions for exploiting public services;

  • –  tax, financial, penitentiary, economic and town-planning law;

  • –  boards of trade;

  • –  costs of court services;

  • –  production and consumption;

  • –  protection of the natural, cultural, artistic, touristic and scenic heritage;

  • –  education, culture, education and sport;

  • –  creation, operation and procedure of the small claims courts;

  • –  procedural matters;

  • –  social welfare, protection and defense of health;

  • –  protection and social integration of handicapped persons;

  • –  organization, guarantees, rights and duties of the civil police forces;

  • –  rights of children, youths and women;

  • –  grant of aids to municipalities and the authorization for the State to grant them loans.

In addition, the Legislative Assembly has exclusive power to:

  • –  determine its rules of procedure, the police and administrative services of its secretariat, including its consultative, legal assessment and judicial representation bodies, for the defense of its prerogatives and specific interests;

  • –  elect its Bureau for a term of two years with re-election being permitted once for the same office in the following period;

  • –  create, change and eliminate offices, positions and functions of its services in its direct, independent and foundational administration as well as fixing and modifying, by means of initiating a law, the respective remunerations, in compliance with the parameters set down in the law on budgetary guidelines;

  • –  receive the Governor’s veto and debate it;

  • –  authorize the Governor and the Deputy Governor to absent themselves from the country and the State for a period longer than fifteen and thirty days, respectively;

  • –  approve and suspend the intervention of the State in municipalities and request it for the State;

  • –  suspend the prescriptive acts of the Executive Power that exceed its regulatory authority;

  • –  establish, by initiating a law, the allowance of the Governor, the Deputy Governor and the Secretaries of State, in compliance with the provisions of the Federal Constitution;

  • –  pronounce judgment on the accounts presented by the Governor within sixty days of receiving the preliminary opinion of the Court of Accounts of the State, and review the reports on the execution of the plans of the Government;

  • –  proceed to seize the accounts of the Governor when they are not presented within the time limits set down in the Constitution;

  • –  pronounce judgment on the annual accounts presented by the Court of Justice and the Court of Accounts of the Municipalities and carry out periodic auditing inspections;

  • –  supervise and verify the acts of the Executive Power, including those of the indirect administration;

  • –  request Federal intervention in order to ensure the free operation of the institution;

  • –  try and judge the Governor, Deputy Governor and the Secretaries of State for political crimes;

  • –  nominate, after a public debate, five of the seven members of the Courts of Accounts of the State and the municipalities in a secret vote and by an absolute majority of votes in accordance with its rules of procedure;

  • –  assess, by means of a secret vote and decided by an absolute majority of votes, the nomination by the Governor of the State of a judge of the Court of Justice, two members of each Court of Accounts and the State Attorney;

  • –  decide on the destitution before the end of their term of the Attorney General and the Public Defender-General of the State, by an absolute majority;

  • –  issue legislative decrees and resolutions that are regulated in the rules of procedure of the Legislative Assembly;

  • –  authorize the State to undertake or guarantee credit operations, both internal and external, including in the form of treasury bonds;

  • –  authorize a plebiscite;

  • –  change temporarily its seat;

  • –  convoke, including by a decision by an absolute majority of its committees, a Secretary of State, prosecutors-general of the State and of justice and managers of the indirect administration so that they may provide information personally within thirty days with an unjustified absence being considered a political crime;

  • –  administer the oath to the Governor and Deputy Governor and receive the resignation of either of them;

  • –  assess, in a secret vote, the nomination of members of the collegial bodies, in conformity to what is set down by law;

  • –  encourage periodically the consolidation of legislative texts with the aim of rendering the consultation of the laws accessible to citizens;

  • –  suspend the effect of a State or municipal rule that is declared unconstitutional with respect to the Constitution by a final decision of the Court of Justice of the State;

Legislation

The various types of legislation are:

  • –  amendments to the Constitution;

  • –  complementary laws;

  • –  ordinary laws;

  • –  legislative decrees;

  • –  resolutions;

  • –  delegated laws.

The right to initiate complementary and ordinary laws lies with any member or committee of the Legislative Assembly, the Governor of the State, the Court of Justice, the Court of Accounts of the State, the Court of Accounts of the Municipalities, the State Attorney and citizens. The right of popular initiative is assured for citizens by means of the presentation to the Legislative Assembly of a proposed law supported by, at a minimum, half a percent of the State electorate.

The Governor of the State has the exclusive right of initiative for proposals dealing with:

  • –  establishing or modifying the contingents of the Military and Civil Police;

  • –  creating offices, functions or public positions in the administration, or increasing remuneration;

  • –  fiscal and budgetary matters;

  • –  public servants of the States, the legal rules governing them, the appointment to offices, tenure and retirement of civilians and the discharge and transfer to inactive service of military personnel;

  • –  organization of the prosecutors’ offices and the Public Defender’s office;

  • –  creation, structuring and powers of the Secretariats and other bodies of the public administration.

Complementary laws are adopted by an absolute majority. The other laws are adopted by a simple majority of the Legislative Assembly.

Once a proposed law is adopted, it is forwarded to the Governor who, if he agrees, assents to it in whole or in part. Alternatively he may veto it, in whole or in part, within a period of fifteen days if he considers the proposed law to be unconstitutional or contrary to the public interest. He communicates this veto to the President of the Legislative Assembly within forty-eight hours. The veto may only be rejected by the vote of an absolute majority of the members of the Legislative Assembly in a secret ballot. If the veto is not upheld, the proposal shall send to the Governor for promulgation. Material contained in a rejected or vetoed proposal may only be the subject of a new proposal, in the same legislative session, by means of a proposal from an absolute majority of the members of the Legislative Assembly.

Executive Power

Executive Power in the State of Bahia is vested in the Governor, who is assisted by the Secretaries of State whom he freely appoints and dismisses. There is also a Deputy-Governor. The election of the Governor and Deputy Governor of the State for a term of office of four years is by direct suffrage. The successful candidates must be registered by a political party and obtain an absolute majority of votes, disregarding blank and void ballots. If no candidate achieves an absolute majority on the first ballot, a new election is held with the two candidates with the most votes being in competition. The person who obtains a majority of the valid votes is considered elected.

It is within the exclusive power of the Governor of the State, in compliance with the law, to:

  • –  represent the State;

  • –  exercise, with the help of the Secretaries of State, the supreme direction of the State administration;

  • –  appoint and dismiss the Secretaries of State and the State Attorney;

  • –  initiate the legislative process in the manner and the cases set down in the Constitution;

  • –  approve, promulgate, veto and have published the laws and, for their proper implementation, issue decrees and regulations;

  • –  appoint judges, the Attorney General, the Public Defender-General, the counselors of the Courts of Account of the State and the municipalities;

  • –  send a message to the Legislative Assembly, at the beginning of each legislative session, setting out the economic, financial, administrative, political and social situation of the State;

  • –  decree and have implemented an intervention in a municipality, in accordance with the Constitution;

  • –  conclude or authorize conventions;

  • –  provide the information requested by the Legislative and Judicial Powers;

  • –  send to the Assembly the multi-annual plan, the draft law on budgetary guidelines and the proposal for the annual budget;

  • –  decree states of emergency and public calamity;

  • –  fill and eliminate State public offices;

  • –  convene extraordinary sessions of the Legislative Assembly in the cases provided for in the Constitution;

  • –  render annually to the Legislative Assembly, within fifteen days after the opening of the legislative session, the accounts for the preceding financial year;

  • –  request Federal intervention;

  • –  contract external or internal loans and conduct external operations or agreements of whatever nature, after authorization from the Legislative Assembly;

  • –  refer to the courts laws and acts that contravene provisions of the Federal Constitution and the State Constitution;

  • –  arrange for the organization and operation of the bodies of the State administration, according to the law;

  • –  exercise the supreme command of the Military Police, and the Military Fire Brigade, promote their officers and appoint them to the offices that are exclusive to them;

  • –  exercise other powers set out in the Constitution.

The Governor is not answerable to the Legislative Assembly but loses office if:

  • –  he assumes another office or function in the direct or indirect public administration, except a post by virtue of a public competition in compliance with the provisions of Article 28(1) of the Federal Constitution;

  • –  he does not take office, except for reasons of force majeure, on the date fixed or within the period of extension granted by the Legislative Assembly;

  • –  he is convicted of a common or political crime;

  • –  he loses or has suspended his political rights;

  • –  he does not return to office, except for reasons of force majeure, by thirty days after the end of the period of leave that was granted.

In addition, the Governor may be indicted for political crimes, which are acts of the Governor that contravene the provisions of the Federal or State Constitution, especially those involving:

  • –  the integrity and autonomy of the State;

  • –  the free exercise of the Legislative and Judicial Powers, the Courts of Accounts of the State and the municipalities, the Department of Justice and the powers of the municipalities;

  • –  the exercise of political, social and individual rights;

  • –  administrative honesty;

  • –  the budgetary law;

  • –  the enforcement of the laws and judicial decisions;

The Governor is tried for political crimes by the Legislative Assembly and for common crimes by the Supreme Court of Justice, after the indictment has been approved by two-thirds of the Legislative Assembly. The Governor shall be released from his functions;

  • –  in the case of common crimes, once an accusation or criminal complaint is received by the Court of Justice;

  • –  in the case of political crimes, after the inauguration of proceedings by the Legislative Assembly.

  • The release from duty of the Governor ceases if the trial is not concluded within one hundred and twenty days without prejudice to the normal continuation of the proceedings. Once the culpability of the Governor is recognized by the Legislative Assembly, the sentence is limited to the loss of office with ineligibility, for eight years, to exercise a public function, without prejudice to the appropriate legal penalties.

Judicial Power

Judicial power in the State is vested in a court system comprising:

  • –  the Court of Justice;

  • –  the Jury Courts;

  • –  the District judges;

  • –  the Council of Military Justice;

  • –  the Special Courts;

  • –  the Small Claims Courts;

  • –  the Judges of the Peace.

Judges enjoy the following guarantees:

  • –  lifelong tenure, which in courts of first instance is only acquired after years of service;

  • –  immovability, except for reasons of public interest;

  • –  non-reducibility of salary.

The Court of Justice is at the apex of the judicial order. It is composed of judges chosen from among Brazilians with renowned legal knowledge and a stainless reputation, and

  • –  four-fifths are chosen from among professional judges at courts of the highest level, alternatively by the criteria of seniority and merit;

  • –  a fifth are reserved, alternatively, for members of the Justice Department and attorneys with more than ten years in the profession or effective professional activity and less than sixty-five years of age, nominated in a triplicate list.

The judges are nominated by the Governor and appointed by the Legislative Assembly.

Besides the powers set out in the State Constitution, the Court of Justice has the jurisdiction to:

  • –  try and judge at first instance;

    • –  common criminal offenses of the Deputy Governor, the Secretaries of State, the State deputies, the members of the Council of Military Justice, the military provost, including those not on active service, the Attorney-General, the Law Judges, members of Public Defender’s Office and prefects;

    • –  writs of injunction against acts of the Governor of the State, the Bureau of the Legislative Assembly, the Court itself and its members, the Secretaries of State, the president of the Courts of Accounts, the Attorney General, the Public Defender-General of the State, the State Attorney and the prefect of the capital;

    • –  actions to annul its judgments and criminal re-trials in proceedings under its jurisdiction;

    • –  claims of unconstitutionality of laws and legal instruments of the State and the municipalities with respect to the State Constitution and petitions for an intervention in a municipality;

    • –  writs of habeas corpus in proceedings, appeals from which are within its jurisdiction or where the accomplice or plaintiff is an authority directly subject to its jurisdiction;

    • –  writs of habeas corpus against acts of an authority directly subject to its jurisdiction;

    • –  writs of injunction where the issue of the regulation is within the power of the Governor of the State, the Legislative Assembly, its Bureau, the Courts of Accounts, the prefect of the capital or the Court of Justice itself, as well as an independent public body and State public foundation;

    • –  petitions for a precautionary measure in proceedings for unconstitutionality;

    • –  requests for the preservation of its jurisdiction and a guarantee of the authority of its orders and decisions;

    • –  conflicts between the State and the municipalities and between the latter;

  • –  fill, in the manner set out in the Constitution, the offices of district judge;

  • –  fill, by a public competition of tests or tests and qualifications, in compliance with the provisions of the Constitution regarding budgetary availability, the necessary positions for the administration of justice, except the positions of confidence as defined by law;

  • –  grant leave, holidays and other absences to its members, judges and servants who are immediately linked to it;

  • –  elect its managing bodies and draw up its rules of procedure in compliance with procedural rules and the procedural guarantees of the parties, and determine the jurisdiction and operations of the respective judicial and administrative bodies provided that they are not set down explicitly in the Constitution;

  • –  organize its secretariat and auxiliary services and the staff of the servants of justice and that of the judges that are linked to it, and monitor the exercise of correctional activity;

  • –  propose to the Legislative Power:

    • –  the creation and elimination of positions and the remuneration of its auxiliary services and the judges who are linked to them as well as the determination of the allowance of its members and of judges;

    • –  the creation and elimination of lower courts;

    • –  the law on judicial organization;

  • –  organize triplicate lists for the promotion of judges;

  • –  request intervention in the State or a municipality in the cases set out respectively in the Federal Constitution and the State Constitution.

The following have standing to bring direct proceedings for the unconstitutionality of a law or State or municipal legal instrument with respect to the State Constitution:

  • –  the Governor;

  • –  the Bureau of the Legislative Assembly;

  • –  the State Attorney;

  • –  the Sectional Council of the Order of Attorneys of Brazil;

  • –  a political party that is represented in the Legislative Assembly;

  • –  a trade union federation and group entities at the State level;

  • –  the prefect or the bureau of a municipal council.

Once unconstitutionality has been found, the decision is communicated to the Legislative Assembly or to the municipal council for them to suspend the implementation of the law or the impugned instrument, in whole or in part. The Court may only declare a law or legal instrument to be unconstitutional by the vote of an absolute majority of its members or its special body. When the omission to take measures to render effective a State constitutional rule is declared unconstitutional, the relevant Power shall be notified so that it may adopt the necessary measures and, where it concerns an administrative body, this must be done within thirty days.

The State Constitution may be amended through proposals from:

  • –  a minimum of a third of the deputies;

  • –  the Governor of the State;

  • –  more than half the municipal councils through a decision of each of them by a majority of its members;

  • –  citizens comprising, at a minimum, one percent of the electorate of the State;

The amendment proposal is debated and voted on in two rounds in the Legislative Assembly and requires, for its adoption, a vote of three fifths of the votes of the deputies. The material contained in an amendment proposal that has been rejected may not be the subject of a new proposal in the same legislative session.