Almost five years after the publication of the Decree-Law, in the mandate of President Eurico Gaspar Dutra, we had the ban on the establishment or exploitation of gambling in Brazilian territory, with Decree-Law no. 9.215, of April 30, 1946. With such normative act, art. 50 of the Criminal Misdemeanor Law and all licenses granted to date for the operation of casinos were declared null and void - §4 of art. 50 makes it even clearer that exploration is not allowed in houses, hotels or establishments intended for the exploration of gambling, which is expressly defined in accordance with §3 of the aforementioned article.
The reasons for the prohibition of the practice, at the time, were:
“Considering that the repression of games of chance is an imperative of the universal conscience; Considering that the penal legislation of all educated peoples contains precepts for this purpose; Considering that the moral, legal and religious tradition of the Brazilian people is against the practice and exploitation and games of chance; Considering that, from the open exceptions to the general law, harmful abuses to morals and good customs resulted; Considering that the licenses and concessions for the practice and exploitation of games of chance in the Federal Capital and in the hydrotherapeutic, spa or climatic resorts were given on a precarious basis, and may be revoked at any time" (Decree-Law No. 9.215, of 30 of 30 April 1946).
It is known that the ex-President's wife directly influenced the ban decision. In this scenario, the exploitation of games of chance, which would go against the customs, values and legal and religious morals of society in the 1940s, was legally banned from the national territory.
This legal provision is under analysis by the Federal Supreme Court (STF), an institution that will be responsible for analyzing whether or not the article was accepted by the Federal Constitution of 1988, that is, after the publication of the Law. The Extraordinary Appeal No. 966,177 recognizes the general repercussion of the constitutional issue and will have an impact on all other matters with a similar theme, being able to legalize once and for all any type of gambling in Brazilian territory, not just the operation of casinos.
The judgment of the subject was scheduled for April of this year. However, it was removed from the agenda and there is no expectation to be included again. Since then, there has been no relevant movement in the process.
Therefore, it is valid to reflect on whether the institutional, social, political, economic and legal scenario in Brazil has undergone changes since 1946 or whether we maintain the same values and customs that led to the express legal prohibition.
In 1945, a year before the ban, Brazil underwent important changes in the government regime, instituting a democratic regime, currently in force. However, there are clear changes in the mindset of governments and agendas defended over these nearly 80 years.
In the period between the publication of the Decree-Law and Brazil in 2021, we even had the promulgation of a new Federal Constitution, which has pillars that are very different from the previous text. The Federal Constitution of 1988, of course, followed the changes in Brazilian society and political evolutions. The characterization as “Citizen Constitution”, also demonstrates important advances – not imagined when elaborating the previous one or the previous ones.
Regarding social customs and values, it is observed that Brazilian society has adopted new parameters since then. Not that we have walked in a completely different direction from the one analyzed here; however, we see that references to religious and juridical morals can have different meanings in 2021. The restrictions that at the time caused repulsion from society are different from the current ones and the State is secular, that is, there is a need for separation between religion and State.
Thus, we can reflect as a society if it would not be the case for us to evolve beyond prohibition and bring a scenario of regulation (even if very restrictive) of gambling in the country.
In order to change reality, proposals for legislative changes are being processed in the two Houses of the National Congress. The main ones are Bill 442/1991, under analysis by the Chamber of Deputies, and Bill 186/2014, in the Senate, to which several others are attached. In different ways and with also different procedures, the texts of the respective substitutes adapted the initial projects to what each Rapporteur believed to be the best model to follow.
More recently, with the discussion of the implementation of casinos integrated to resorts brought by players and stakeholders also from the Executive Branch, Bills 4495/2020 and 2648/2019, gained a large proportion among congressmen of the Federal Senate. In the other Legislative House, the Working Group was created to analyze the possible implementation of a new Regulatory Framework for Gaming in the country.
Opponents' resistance to the agenda is legitimate and must be considered and analyzed. In the same vein, the argument of job creation, income and tax revenue in an economically unfavorable scenario goes back to a pinch of will for legalization.
In any case, opting for the legalization and regulation of gambling, whether only through some modalities or general authorization of all of them, the need for Compliance pillars and ensuring responsible gambling in the country must be considered.
We are aware of the existence of serious players committed to advancing and responsible implementation of clear and secure rules. The experience of other countries will help with the essential measures to be adopted and cannot be ignored.
In view of all these points, it is at least opportune to resume the debate on the subject in the three Powers, considering social and legal advances experienced more recently – after the ban on casinos completing almost 80 years, as well as the Decree-Law.
Bárbara Teles
Lawyer and General Secretary of the OAB/DF Gaming Law Commission
Source: Jota
