The discussion that is currently taking place in the political and economic scenario in Brazil concerns the legalization or not of gambling. There are arguments that are at odds on both sides. However, the inconsistency of those who advocate against the legalization of the activity is unfounded or merely emotional.
Is gambling legally prohibited in Brazil? The Dutra government (Decree-Law No. 9,215, of April 30, 1946) prohibited its practice. The 1988 Constitution brought innovations and provided for free enterprise in the economic domain. Gambling is a modality of provision of economic activity. If the man is free, there is no impediment to play.
Juridically, the legal order that came with the current constitution adopted a libertarian attitude in every sense, as we were emerging from a dictatorship. Economic freedom has been achieved and, since business activity is the mainstay of liberal consecration, playfulness is included in it.
The economic order is based on the valorization of human labor (art. 170 caput of the Federal Constitution) and on free initiative. Now, the ludic activity is born with the man as Huizinga informs us in a remarkable book (“Homo ludens”).
In such an activity the State only has the power to regulate; never prohibition. The practice of economics by the State is prohibited, except "when necessary to the imperatives of national security or to the relevant collective interest, as defined by law" (art. 173, caput of the Constitution). In acting on economic activity, it is only for the state to intervene as regulator (art. 174 of the Constitution) and inducer.
The Federal Constitution clearly and ostensibly opted for the capitalist system of production. We might wish it were not so, but what is read from the text is freedom in the economic field.
We can define gambling as an economic activity and Dutra's prohibition in 1946 is incompatible with constitutional precepts. The prohibitive rule is challenging the current Constitution, which makes it inapplicable as a prohibition. The Federal Supreme Court is about to decide the problem.
The subject was brought before the Supreme Court a long time ago. But it doesn't decide. Having started the feat in Rio Grande do Sul, which has already given us great examples of a fight for freedom and patriotism, the State has not failed with the other Brazilians and has questioned the problem before the Supreme Court. The foundation is this: the ludic activity is entrepreneurial, and the order established in 1988 is incompatible with the previous prohibition, which delegitimizes the Dutra government prohibition. Therefore, the prohibition is incompatible with the new legal order.
If the Supreme Federal Court, by vote of its rapporteur, Minister Luiz Fux decides that the decree-law of Dutra is ineffective, gambling will be released.
It happens that in Brazil there is a lack of legal certainty and the entrepreneur does not invest millions of reais in the construction of casinos or bingo houses that would later be banned. The rules are not defined, there is no investment.
It follows that, affected by economic interests, countless sectors begin to move to make the legalization of gambling viable. The country is in crisis. Investors in the area want to invest resources in the country.
Why don't they do it?
01. The sector of the ‘jogo do bicho’ today has bookmakers in illegal operation. There are about four hundred thousand people working illegally, settling with the police and away from the legal labor market. They are marginal. They do not collect social security nor have a formal contract. If such a sector is legalized, the people mentioned will enter the legal market, would have dignity and the entrepreneurs would no longer be treated as outcasts, becoming employers. The taxes would be in the order of five (5) billion reais.
Non-approval only interests those who are attached to prejudice. Religion is influential. But who doesn't want to legalize jobs, avoid corruption and bring resources into the public coffers? Only the fallacy of arguments and hypocrisy support the opposite position.
02. Bingo became banned due to the excesses of businessmen who misrepresented the intended purposes of sustaining the football game. Bingo would bring to the public coffers about 5 (five) billion reais.
It would open a work front for waiters, cooks, musicians, security guards, concert halls for artists of all kinds, gastronomy, etc.
03. The legalization of casinos would encourage the tourist industry. Resorts and hotels would have new life. Others could be built.
Needless to point out the creation of countless jobs. In the casinos there would be concert halls, theater, cinema, several restaurants, alongside jobs such as croupiers, security guards, waiters, etc.
Legalization would bring taxes in the order of ten (10) billion reais.
The contrary arguments are based on the following: The first opposition is that the legalization of gambling would raise the possibility of money laundering. The hypothesis is discarded, because electronic controls are efficient. All gaming machines are controlled by modern software. And, how to talk about money laundering in Brazil, a country where corruption is loose?
Crime is permeated in society. Not only by the large organizations (PCC, Comando Vermelho) that have effective political action electing councilors, mayors and deputies, but also by the ingrained corruption between police and gambling professionals. It is a practice that comes from its origin. The biggest example occurred in Rio de Janeiro.
Everything would end with the legalization. Control is solar evidence. You don't play with money anymore. In the casino and bingo, the player goes to the cashier and exchanges credit card or cash for a chip. This is the only one that enters the casino and bingo. In ‘jogo do bicho’ what prevails is the small bet of 5, 10 and 20 reais.
The second argument to the contrary is the disease that can impact some players. It is true. The existence of the ludopathy, that is, the gambling addict is real. Is there a risk? Yes, but there are efficient control instruments, such as the registration performed by the family and the visualization instruments of the casinos and bingos.
On the other hand, the other vices that do not supplant the virtues are cigarettes, alcohol and drugs of all kinds. Gambling is strictly a business activity and can be controlled, in all its manifestations, by the Public Power.
What would be the advantages of legalizing? a) collection of taxes; b) opening of numerous service stations, c) encouraging tourism; d) development of gastronomy, hotels, improvement of game machines, turning Brazil into an exporter of techniques; e) legalization of those who are currently out of the labor market, giving dignity to such people.
Worldwide, from 193 UN member countries, 75.52% have legalized gambling. In G20, 93% of the countries have the practice legalized, leaving only Brazil, Saudi Arabia and Indonesia (Islamic countries).
It is estimated that the tax revenue of the activity corresponds to 1% of GDP. In Brazil, GDP is 6.226 trillion. The average global tax rate is around 30%, resulting in an annual collection of around 18 billion.
We don’t just think about tax collection, which would help the country to get out of the crisis. More important than that is the guarantee of the freedom to do or not do something.
There is still one last argument in favor of legalizing gamblin: freedom. The State insists on protecting people, telling them what it can and cannot do. Sparse codes and laws contain an unrestricted number of prohibited behavior and respective sanctions. It is within the concept of freedom the possibility that each of us has to play, as long as the activity becomes lawful. Who gave the State authority, within the social pact, to ban gambling? Only Dona Santinha, Dutra's wife, had the religious strength to ban gambling. But religion cannot dominate everything and everyone, and the State is secular in that sense.
The legalization of gambling meets legal, economic, and financial imperatives. It is imperative that the law comes with full control to prevent the practice of criminal acts or that the Supreme Federal Court decides the action that has been there for many years.
Source: PlanaltoemPauta.com.br
Régis Fernandes de Oliveira
Brazilian lawyer, magistrate, professor, and politician. He was a judge at the São Paulo State Court of Justice, full professor at the University of São Paulo, deputy mayor and, interim, mayor of São Paulo, and federal deputy.
