Recently, and in the Actions for Non-Compliance with Fundamental Precept of numbers 492 and 493, the Federal Attorney General's Office (AGU) stated that the Federal Union has a privilege in relation to the States, based on art. 22, XX of the 1988 Constitution (it is incumbent upon the Union to legislate on systems of consortia and draws).
It is worth remembering that, due to the understanding of the Constitutional Court, bingos and lotteries were included in the scope of the said device, as is verified in Binding Summary n. 02 (it is unconstitutional the law or State or District regulatory act that provides on systems of consortia and draws, including bingos and lotteries). Without wishing to enter into the merits that led the Court to make such an inclusion, the practical result is the current conflict between the Federal Union and the States. For, as we know, the former wants to exercise a de facto monopoly of the lottery industry at the expense of the latter.
In order to ensure compliance with the 1988 Political Charter and, consequently, state lotteries, the Governor of the State of Rio de Janeiro and the Brazilian Association of State Lotteries (ABLE), in short, seek recognition of non-acceptance of Articles 1 and 32 (and its paragraphs) of Decree-Law 204 of 1967 by the said 1988 letter. This is because such rules, again in summary, freeze existing state lotteries at the operational levels of 50 years ago, as well as prohibit other States from public lottery services (states that did not operate lotteries in 1967 could not perform such services today).
Thus, if on the side of the States (and the Federal District) it is argued that: a) there is no preponderance of the Federal Union over the other entities of the Federation (by virtue of the Federative Pact established in the Constitution of the Republic of 1988); b) there is a prohibition of monopolies not foreseen in the same Political Charter and; c) The Federal Supreme Court itself has more than once expressed itself in the sense that state lotteries can perform their services, provided they follow the federal paradigm (modalities and technologies). On the other hand, the Union merely states that the prerogative to legislate privately on a given subject results in a monopoly (or more recently a privilege), by virtue of the combination of art. 22, XX of CR / 88, of Binding Precedent n.02 of STF and of Decree-Law 204/67.
In this scenario, the AGU states that the Federal Union has a privilege for the exploitation of lotteries. The classic concept of such invocation is: advantage, prerogative, appanage, regalia, valid only for an individual or a group to the detriment of the majority. And in the work of Legal Vocabulary (de Plácido e Silva, 12 ed. Forensic, 1993), privilege means exceptional law, of exception character. In fact, if there is no hierarchy between federative entities, if in a Republic (a thing of all) we seek material equality (equality of all), we ask: how can the Federal Union have a privilege to the detriment of other entities?
Just to remember, the idea of privilege refers to the monarchies, especially the absolutists. We are talking about a time when the State was personified by a Monarch, who could dispose of everything and everyone - as we know from the celebrated statement of Louis XIV (1638-1715): I am the Law, I am the State ; the state is me (Je souis la Loi, Je souis l'Etat; l'Etat c'est moi). Ordinarily speaking, the Monarch was above the others and for him the rules were according to the conveniences.
As one can easily see, the idea of privilege is opposed to republican ideals. Reason why, the assertion of the AGU is a misconception that deserves the due fight. It is not healthy to have an exception regime within our Jus-Political system.
That’s why, even if it may seem an exaggeration, the question of lotteries has assumed very relevant aspects from the Jus-Political point of view, since, in short, it will be for the Constitutional Court to define whether our Republic is closer to 1967 or 2017. Since there is a certainty: there is no republican privilege!
Marcello M. Corrêa
Lawyer in Rio de Janeiro and Master in Political Science from Fluminense Federal University.